When same sex couples purchase a home, there are some legal protections that can be put into place to protect their children in the event one or both of them die. The protections that would be best for you will depend on your particular situation. Following are some of the options that are available, depending on the state that you live in.
Types of Ownership
When you purchase a home, you can choose how you want to take ownership. Following are some of the choices that are available.
Joint tenancy with right of survivorship means that you will both own and use the home equally. When one of you dies, your partner will automatically own the home. This may be an option if you are both parenting the children and the surviving partner is a legal guardian and will continue to care for them after the death of the partner.
Tenancy in common allows each of you to will your share of the home to anyone you choose, including your children. In order to protect your children with this option, you can create a will making them the beneficiary upon your death.
Sole ownership where the home is owned by one of you rather than both is an option. The legal guardian of the children could purchase the home in his or her name and will the home to the children. The problem with this option is that the partner whose name is not on the home will not legally own any interest and will have no rights should you breakup or die unless you have created a will that includes them.
Creating a will allows you to distribute your assets to anyone that you choose. To protect your partner and your children, you can include them as the beneficiary of your home and any other assets that you choose.
If you die without a will, your estate will be distributed according to the laws in the state that you live in. Most states dictate that the estate is distributed between the spouse and the children, or to the children if there is no spouse. In the case of same sex couples who are not married or in a legal relationship, the home would be distributed to the children only if they are their natural children or are adopted. This means that if the children are the natural issue of one of the partners in a same sex relationship and the other partner dies, his estate would not go to the surviving partner or his or her children.
Most people choose to create a will as well as selecting the home ownership option that works best with their particular situation. There are also other estate planning options available that can be used to protect both your partner and your children in the event of your death including revocable living trusts.
Real estate and estate planning laws vary by state. It would be wise to consult with a real estate attorney who is familiar with LGBT issues when considering the options available to you and your same sex partner.
If you are in the market to purchase a home, you should hire an LGBT real estate agent at GayRealEstate.com to assist you. He or she will help you find the right home and protect your interests throughout the home buying process.
When you find the perfect home that you and your partner would like to purchase, you will begin the process by making a purchase offer. The offer generally includes how much you are offering to pay for the home, contingencies to the purchase such as inspections or financing, and any conveyances you would like included such as furnishings or other assets. It may also include a good faith deposit, generally $500 or 5 percent of the home’s value, to show that you are serious about purchasing the home.
Before making your offer, there are some things that you should consider.
1. Find out why they are selling. If they are selling because they have to make a move for a job change or some other reason that makes them motivated to sell the home quickly they may be willing to negotiate on the asking price.
2. Do not make an offer that is a lot lower than the asking price if it is a fairly priced. This could insult the seller and make him or her unwilling to negotiate any further with you. If the home is fairly priced, you may consider offering a slightly lower amount if you are not buying in a fast paced market where you stand to lose out on the home altogether.
3. Do not show the seller that you are enthusiastic about buying the home. Doing so could make the sellers think that you want it bad enough to pay a higher price than what you are offering. While this may open negotiations, the seller may be less inclined to lower the price or offer additional perks, such as paying closing costs or making a repair that you would like.
4. Be sure to include logical time frames for obtaining financing, inspections and other contingencies that you can logically meet. For example, while you may believe that you can obtain financing within two weeks, there is no guarantee that it will happen. You may end up applying at a different mortgage company and miss the deadline. In that case, the agreement can be voided for noncompliance and the seller is free to sell the home to someone else.
The seller has the option of accepting your offer, making a counter offer with or without changes, or rejecting your offer altogether. Keep in mind that just because your offer may be the first, the highest or the best offer the seller has received, he or she has no obligation to accept it. In a few states, the seller is required to accept an offer or take it off the market if the offer is for full price with no contingencies. Generally, sellers have the authority to accept the offer that they prefer.
If the seller rejects your offer altogether, you have the option of submitting another offer. In that case, it would be wise to have your real estate agent, if you have one, find out why the offer was rejected in the first place. That knowledge will give you a base for making a better offer that may be accepted.
If the seller accepts your offer and all parties sign, a ‘meeting of the minds’ takes place and the contract becomes legally binding. This is why it is important to include any contingencies and conveyances that you would like included. Unless the seller is willing to negotiate and modify the purchase agreement, you will be legally liable to follow through on the purchase on the terms submitted in the offer.
If you are considering selling your home, you should consult with an LGBT real estate agent at GayRealEstate.com. He or she is in the best position to know and discuss the local market with you and guide you through the process of buying a home. In addition, an LGBT real estate agent has the knowledge to guide you through the process of making a purchase offer.
In our previous articles, we noted that LGBT individuals and couples had spread throughout cities including Minneapolis, Chicago and Phoenix rather than staying in designated LGBT neighborhoods. Since those articles were published, Amin Ghaziani released a book “There Goes the Gayborhood” that includes his research into LGBT demographics. Ghaziani is a respected sociologist at the University of British Columbia.
Ghaziani found that, like all neighborhoods, gayborhoods change. LGBT households are moving out and straight’s are moving in. He noted that “…LGBT people, in greater numbers than ever before, are living their lives outside the boundaries of just one neighborhood in the city.” Ghaziani found that same sex households were found in 93 percent of all of the counties in the United States. One of the main reasons, according to Ghaziani, is that “…many LGBT people feel culturally similar to their straight neighbors” and straight people are more tolerant than in the past. He notes that “[t]he rapid rate at which sexual minorities are blending into American society represents the most impressive civil rights triumph of our generation.”
Activists and LGBT organizations can be credited with the integration of the LGBT community into straight communities and vice versa. Because of their influence, Section 3 of the Defense of Marriage Act was ruled unconstitutional in United States v. Windsor, opening the door for the federal government to recognize same sex marriages and allow those couples to receive the same federal benefits as opposite sex married couples.
Currently 19 states recognize same sex marriages: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, new Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington and the District of Columbia. Court cases are pending in a number of other states seeking to legalize same sex marriages. As same sex marriage laws are enacted and lawsuits are fought in courtrooms, the American public has been made more aware of LGBT issues and have become much more tolerant. They are seeing those in the LGBT communities as real people, not just a label for people that do not fit into their straight lifestyle.
Gayrealestate.com feels that the bottom line is that LGBT people want the same benefits in a community as their straight neighbors: safety, good schools for their children and friendly neighbors. Acceptance of the LGBT community has taken major strides in recent years and promises to continue to do so in the future.
A condominium, commonly referred to as a condo, is a large building that is divided into single family units that are sold individually. Ownership includes shared community property such as the parking lot, hallway, elevator and the central heat and air conditioning unit.
Before purchasing a condo, you should do some research so that you understand exactly what you are buying before signing on the dotted line. The laws of condo ownership are not exactly the same as they are for buying a typical single family home. Following are 6 questions every LGBT person should ask before buying a condominium.
1. What are the condo association rules and regulations? Before purchasing a condo, you should ask for copies of the condo’s bylaws and read that document. It outlines the rules and regulations that govern owners and tenants and how the association operates. There may be some rules that could impact the lifestyle you choose to lead that would be important for you to know before purchasing the condo.
Condo associations may enact rules and regulations as they deem appropriate within the confines of the law. Each state has its own statutes on what may or may not be included in those documents. For example, California Civil Code §§ 1350 – 1378, the Davis Stirling Act, dictates the authority that an association can exercise and what can and cannot be included in an association’s bylaws and rules and regulations. Because of this, you may want to review your state’s laws before looking for a condo to purchase. It will give you an idea of whether owning a condo is the best choice for you.
2. What fee does the condo association charge? Most associations charge monthly fees that are applied to the upkeep of the common property including the land surrounding the condo, the exterior of the building and any amenities such as swimming pools or banquet rooms. For example, snow and ice removal, lawn maintenance, siding and roofing. You will also want to find out if any increases are imminent and, if so, how much.
3. What maintenance does the monthly condo association fee cover? For items not covered in the fees, you will want to find out what how often special assessments are initiated and for what type of repairs. A special assessment is money that an association needs to pay for a project that is not included in the annual budget. For example, the septic system becomes damaged and must be replaced. A special assessment may be initiated to pay for the replacement. The assessment may take the form of a lump sum payment from all members of the association or an additional amount added to your monthly fees. This information will impact the amount of money that you will need to budget each month for your condo expenses.
4. Ask to look at the minutes from the condo association board meetings. Reviewing the minutes will let you know what the members are complaining about, how the association responds to those complaints, how well the association is taking care of the building, and whether the seller has been truthful about any upcoming projects that may cost you money in the form of a special assessment if you buy the condo. Not all associations will provide their minutes and most state laws do not dictate that they have to.
Even if you are allowed to read the associations minutes, you should also talk to some of the neighbors in the condo. Ask them how they like living there, what problems they are having and what they think about the condo association. Talking to the neighbors will also give you an idea of whether they are the type of people that an LGBT person or family would be comfortable living next to.
5. What does the condo association insurance cover? You will need to purchase a separate insurance policy to cover items not included in the association’s insurance, such as the inside of your condo and its contents. Some association bylaws dictate what minimum type of insurance coverage owners must purchase.
6. How much money does the condo association have? This is an important aspect because if the association has no reserve funds, they cannot afford to pay for repairs, and that cost may be assessed to the condo owners. If the condo has a bad roof and the paint is peeling and the condo has no funds in its coffers to repair the building, it is a major red flag that there are problems within the association or with its members.
The best way to purchase a condo is to hire an LGBT real estate agent who knows the neighborhood that the condo you are interested in is located. An experienced agent will also know the ins and outs involved in purchasing a condo and will guide you through the process while looking out for your best interests.
Purchasing a home is an exciting but stressful life event and emotions can get out of hand. For example, disputes can arise if you prefer the cute little house on Leaf Street but your partner prefers the condo located closer to town, or the home one partner prefers costs more than the other partner is comfortable spending. Following are some tips on how gay couples can buy a house without a breakup.
1. First and most importantly, sit down and talk! Discuss the top priorities of the type of home that you would like to purchase and come to an agreement on something that would work for both of you. For example, is a garage mandatory, how many rooms and baths would you like, and is a small lot or several acres preferred? Although your preferences may change once you begin looking at different homes, you will have an idea of the type of home that you would suit each of your preferences.
2. While you are discussing suitable homes, you should discuss how you want to own the home so that there are no misunderstandings down the road. For example, joint tenancy with right of survivorship, tenants in common or tenancy by the entirety. The ownership options vary depending on the state that you live in. States that allow ownership by tenancy by the entirety make it available to married couples only. For more information on forms of ownership, see our article Exploring Forms of Home Co-ownership for LGBT Unmarried Couples.
3. Put it in writing! Prepare an agreement that outlines all of the issues that you have agreed upon. You can add to the agreement as issues come up and you make additional decisions about buying a home together. Generally, the agreement is to resolve any potential disputes and is not a legal document. An agreement is only legally binding when it constitutes a legal agreement that a court of law will enforce. Those types of agreements must contain an offer and an acceptance where one party is agreeing to provide money, goods or perform services in return for something of value such as other goods, services or money.
4. Hire a real estate agent who specializes in working with LGBT clients. He will discuss the steps involved in purchasing a home and answer any questions that you may have. Having an agent that you trust will help relieve a lot of the stress involved in purchasing a home. For more information, see our article Top 10 Reasons to Hire a Gay Realtor for your Home Purchase.
Buying a home should be a fun adventure; relax and enjoy your search. We hope these tips on how gay couples can buy a house without a breakup will help you find and purchase your new home with a minimum of stress.
Buying a home with your partner is an exciting event. Before combining finances and purchasing your home together, there are some things that you should talk about and consider. Following are the top 10 tips for merging LGBT finances when buying a home.
1. Have a discussion about your income, debts, spending habits and your credit history. This conversation will let you both know where you both stand financially and help you decide how much home you can afford.
2. Create a budget that includes the anticipated mortgage payment, utilities, taxes and other related household expenses. This will show you the approximate minimum amount that must be contributed to the household each month.
3. Set up a joint checking account. The account should be used for paying your down payment on the new home and for bills related to living expenses. For example, mortgage, utility and home maintenance payments and household expenses.
4. Set up a joint savings account that can be used for emergency home repairs and for reaching your future goals. For example, maybe you both dream of taking a vacation to Australia, or your objective is to invest in a vacation home. A savings account will help you reach those goals.
5. Decide how much each of you will contribute to the bank accounts each month. Some couples may contribute 50 percent each while others contribute based on their income. For example, if one partner makes more money than the other, the contribution may be 60 percent for one partner and 40 percent for the other.
6. Draft a will naming your partner as the beneficiary of your interest in your new home. You may also consider making him a beneficiary on your retirement and investment accounts and your insurance policies. This may be important in helping your partner afford to keep the home if you die.
7. Consider drafting a durable power of attorney for financial decisions. That document will allow your partner to make financial decisions on your behalf if you become incapacitated due to accident or illness.
8. Obtain a joint credit card for purchasing home furnishings and other items that will be joint property. Decide if all purchases or just purchases over a certain amount must be discussed beforehand. The bill should be paid from the joint checking account. Be sure to adjust your monthly contributions to your joint checking account to cover the credit card payments.
9. Keep separate checking accounts to pay for existing expenses, including car payments and student loans. This will allow each partner to pay their own debts off and maintain some control over their finances.
10. Put it all in writing. Draft a domestic partnership agreement that outlines each partner’s responsibilities in the relationship and what will happen to the home and other assets if the relationship is dissolved.
It is essential that you are both honest about your financial situation before merging your LGBT finances when buying a home. If, for example, you have a judgment against you, that creditor could place a lien against your new home. Lack of honesty could end up destroying your relationship with each other.
Purchasing a home is a huge investment of your time and money. It makes sense that you would want a professional who understands your needs to assist you in the process. Below are the top 10 reasons to hire a gay realtor for your home purchase.
1. You can be yourself so that you can develop a trusting relationship with your realtor. He will listen to and understand your needs. If you do not trust your realtor and do not believe he or she is working on your behalf, the process can be stressful and you could be taken advantage of.
2. Your gay realtor will assist you through the process of finding and purchasing your new home. He will keep track of all the paperwork and ensure that deadlines are met including during negotiations on pricing, inspections, etc. up to closing.
3. Laws in each state continue to change often and can have a huge affect on your rights in relation to real estate issues. Your gay realtor will be on top of housing laws and guidelines that affect the way that gay couples can purchase a home.
4. He will protect your rights during the buying process so that you can avoid the typical pitfalls that can delay or end the transaction. For example, deadlines, title issues, insurance and promised repairs.
5. Your gay realtor will have the inside track on homes that may be perfect for you but have not yet been listed on the market. This can give you an advantage by being first in line to bid on the home.
6. Your gay realtor will let you know if a home is over or under priced and will assist you in making a reasonable offer. He will also submit the offer and negotiate with the seller on your behalf.
7. As a part of the gay community, your gay realtor will be able to tell you about the area including gay friendly businesses, local organizations, safe parks and nightclubs.
8. Your gay realtor can introduce you to members of the local LGBT community that may give you additional insight on the neighborhood and surrounding area that you are interested in.
9. Your gay realtor will know the best lenders that will work fairly with you and your particular situation.
10. Your gay realtor will be a great resource after you close on your home.
Before you hire a gay realtor for your home purchase, contact a couple from GayRealEstate.com and chat with them both to ensure you’ll get along with he/her and that you are comfortable relying on his/her advice. If you are not comfortable, you should continue your search until you find someone you trust. Building a relationship with your realtor will help take the stress out of purchasing a home and make the adventure enjoyable.
Gay couples that live in states that do not recognize same sex marriages have unique concerns when it comes to estate issues and real estate. Below are some legal avenues that you can use to protect your gay partner and ensure your assets are distributed according to your wishes.
Wills are important estate planning documents that allow you to distribute your assets according to your wishes upon your death. If you do not create a will, your estate will be distributed according to the intestate laws of the state that you live in. This presents challenges for gay couples that are not married or in a legal partnership or who live in a state where same sex marriages and partnerships are not recognized. In those states, your gay partner cannot inherit your real estate unless they are listed on the deed as joint tenancy with right of survivorship, named in your will, or other estate planning measures have been taken.
With a will, you can name your partner or another person as an executor to manage your estate after you die, record how you want your assets distributed, and nominate a guardian for your children and to handle any assets that they may inherit from you. You can leave all or a portion of your estate, including your real property, to your gay partner through a will.
Revocable Living Trusts
Revocable living trusts are similar to wills but title to your assets is transferred into a trust while you are living. A living trust allows you to avoid probate, a drawn out process where the court oversees distribution of your estate. The trust is revocable, meaning that you can revoke it entirely or change the terms while you are alive and are mentally competent. It is legal for you to appoint yourself as the trustee of the trust during your lifetime so that you retain control over the power to sell, invest or do whatever you want with your assets.
A revocable living trust allows you to direct who will inherit your property and to name a successor trustee to fulfill the directives of the trust. Your gay partner could be named as the successor trustee and it would be his obligation to distribute your property as you directed. You can leave all or a portion of your real estate, bank accounts, jewelry and other assets to your partner.
Transfer on Death Deeds
Some states allow a transfer on death, TOD, real estate deed to be filed with the county registry of deeds. The TOD should state specifically that it only takes affect upon your death. You can name your gay partner or anyone else as the beneficiary on the TOD. It can be revoked at any time while you are alive. You should check the laws in your state to determine whether TOD’s are allowed if you are interested in this type of estate planning.
Each state has its own estate planning and real estate laws. It would be wise to consult with a professional gay realtor at GayRealEstate.com for a referral to a real estate attorney who is familiar with LGBT issues when considering the options available to you and your gay partner.
If no legal precautions were taken before his/her death to secure your right to live in the house then his family may have the authority to kick you out. It will depend on issues including who will be inheriting the property through intestate laws or a will. Family members who have no right to the home cannot kick you out. According to Lawyers.com, if you and your partner were married and live in a state that recognizes same-sex marriages, you may have other legal options available to avoid being kicked out of your partner’s home.
Inheritance laws vary by state and include many conditions. Generally, in the absence of minor children, most state’s intestate laws dictate that the legal spouse, or in some states the registered domestic partner, inherits everything or a portion of the estate. In that case, you may have a legal right to go to court and retain some or all rights to the home.
Partners who are not included in a will, did not take legal precautions and were not married or registered partners inherit nothing. In that case, eviction laws come into play. According to Findlaw, most states have laws that give a person the legal right to live in a home when he or she has been cohabitating with the deceased person for a certain period of time, generally months. In that case, the individual(s) who inherit the property are required to go through an eviction process in a court of law. It generally takes a minimum of 30 days to evict someone.
Legal Precautions You and Your Partner Can Take to Protect Each Other:
Drafting a simple will allows partners to dictate what happens to their estate upon their death. A partner may leave everything he or she owns to the partner, including a home deeded in his or her name, or only a portion of the estate assets. If you and your partner are married but live in a state that does not recognize same sex marriages or are not married in any state, the surviving partner may have to pay hefty estate taxes.
Add your partners name to the deed. There are several choices in this category. Tenancy in common is shared ownership of the property. You may still be required to move out after your partner dies unless you can pay the value of the partner’s share to the person who inherits. Joint tenancy creates a right or survivorship. When one of the partners dies, the surviving partner gets sole ownership of the home.
The laws surrounding estate planning and intestate distribution are complicated. If you are in a partnership, it would be wise to consult with a lawyer who specializes in same sex estate planning.
Make sure your legal rights are understood and protected ~ entrust the services of a top gay realtor at www.GayRealEstate.com.
Same-sex couples often jump through legal hoops when dealing with their joint finances — and owning real estate is no exception. If the Supreme Court strikes down the law that defines marriage as the legal union between a man and a woman, some, but not all, of these obstacles may be removed.
When it comes to owning a house together, gay married couples can expect to see a few changes if the Supreme Court rules that a part of the Defense of Marriage Act, or DOMA, is unconstitutional. Those changes will affect the mortgage interest tax deduction and Veterans Affairs home loans.
A Supreme Court ruling could have a harder-to-define effect in the 50 states and District of Columbia. Each jurisdiction has its own laws regarding the treatment of same-sex couples, as well as its own laws governing ownership of real estate.
This article first describes what could happen federally with the mortgage interest tax deduction and VA loans. Then, a clickable map summarizes how same-sex homeownership is governed in the states.
Same-sex marriage and the mortgage tax deduction
Married gay couples who have a mortgage together will be able to claim the mortgage tax deduction jointly if DOMA is struck down. That’s because without DOMA’s federal definition of marriage, they will be allowed to file federal tax returns jointly.
Currently, same-sex couples married in states that allow gay marriage have to file their federal income taxes separately because DOMA prevents the federal government from recognizing their marriages.
“If the federal government doesn’t recognize your marriage and you cannot file jointly — even if, for state purposes, you do file jointly — then one person is usually claiming the (mortgage) tax deduction even though in reality two people are paying for the mortgage,” says Gideon Alper, an attorney in Orlando, Fla. “Right now, I am taking the mortgage interest deduction on my property, and my partner is not, even though we are both contributing to the mortgage payment.”
Two unmarried people who have a joint mortgage can split the mortgage interest tax deduction, as co-borrowers. Say they have $5,000 in interest to deduct. Each co-borrower could claim $2,500. But splitting the deduction and filing separately doesn’t always make financial sense to a couple. For example, the deduction might not be higher than the standard deduction when it is split in two.
Same-sex marriage and Veterans Affairs loans
Currently, a service member or veteran married to a person of the same sex who wants to get a Veterans Affairs loan can’t include his or her partner as a spouse on the loan. According to federal rules, the definition for spouse requires the individual to be a “person of the opposite sex.”
They could get a VA loan with a joint loan, but unless both partners are veterans, the VA would guarantee only the portion of the loan allocable to the veteran. For example, if the two partners apply for a joint VA loan of $200,000, the VA guaranty would apply to $100,000. Eliminating DOMA’s definition of marriage would be the first step to allow the same-sex spouse of a veteran to get the same rights as opposite-sex married couples.
The change wouldn’t be automatic because in addition to DOMA, Title 38 — which governs VA benefits — also restricts the definition of spouse to opposite-sex couples. But if DOMA is ruled unconstitutional, Title 38 would likely go the same way, says Caren Short, an attorney at Southern Poverty Law Center. She is co-counsel on a federal case challenging both DOMA and Title 38.
“Challenges to Title 38 exist, and they already are in a position to be decided as soon as the Supreme Court decides on DOMA,” she says. “Courts that have been waiting for that decision will also find Title 38Â unconstitutional.”
Many real estate rules, including title laws, are governed by states, so rules for same-sex couples who own property together vary by state.
The DOMA case before the Supreme Court focuses on whether the federal government has the right to define marriage as the union between a man and a woman. It will ultimately determine whether “the existing marriages of same-sex couples will be recognized and respected for federal program purposes,” says James Esseks, director of the Lesbian Gay Bisexual Transgender and AIDS Project of the American Civil Liberties Union.
The case challenges only Section 3 of DOMA. Another part of the law, Section 2, says that states don’t have to recognize marriages of same-sex couples even if they are legally married in another state. That section is not the issue being considered by the court. Unless the court’s opinion says states must recognize same-sex marriages performed in other states — which is unlikely — little will change in states that don’t allow gay marriages.
States and districts where same-sex marriage is legal:
Delaware (as of July 1, 2013)
District of Columbia
Minnesota (as of Aug. 1, 2013)
Rhode Island (as of Aug. 1, 2013)
Marriage is a legal status that provides the spouses a variety of reciprocal obligations, rights and protections. Heterosexual marriages in each state are recognized by all other states, as well as by the federal government.
These states already treat same-sex married homeowners with equal rights. Married couples can take title to the house as spouses regardless of sex or sexual orientation. The overturning of DOMA would give same-sex couples in these states additional rights on a federal level, including claiming the mortgage tax deduction as a couple filing federal taxes jointly.
States where civil unions are recognized:
Delaware (until July 1, 2013)
Rhode Island (until Aug. 1, 2013)
A civil union is a legal status that provides legal protection to same-sex couples in the applicable states only. Civil unions typically are not recognized outside the couples’ state of legal residency.
In these states, same-sex couples can own a home with similar rights to married couples. As partners in a civil union, they can hold title through tenancy by the entirety, which is a right that used to be available only to “husband and wife.”
With tenancy by entirety, the parties own an undivided part of the property, which means a spouse can’t sell his or her interest in the property without the other spouse’s signature. Another benefit to this method is that, when one spouse dies, the property automatically reverts to the survivor without going through probate. Tenancy by entirety also protects spouses from creditors because a creditor is not allowed to take away the home to satisfy the debt of one spouse.
Colorado does not have tenancy by entirety. Instead, the state has marital property rules, meaning that any property acquired by a spouse during the marriage belongs to both parties. Partners in a civil union in Colorado have these marital property rights.
Still, couples in these states could remain at a disadvantage with regards to the mortgage tax deduction and other federal benefits. That’s because even if the federal government recognizes gay marriage, it remains unclear whether civil unions would be treated as marriages on a federal level.
States that recognize domestic partnerships:
A domestic partnership is a state-sanctioned legal status that allows unmarried couples, heterosexual and same-sex, to formalize their relationships and which extends some state rights to those couples.
These states allow domestic partnerships, but not all grant the same spousal rights to domestic partners when it comes to owning real estate as a couple. In Nevada and Oregon, partners in a domestic partnership have the same title rights as married couples.
In Wisconsin, partners can inherit property without a will. As long as the deed lists them as domestic partners, the property can be transferred automatically if one partner dies. But when partners separate, they don’t have the same marital benefits for the division of property.
Washington is a special case: As of 2014, the state will allow domestic partnerships only to couples who are 62 years of age of older. Domestic partners don’t have any of the community property rights that married couples have.
State that recognizes domestic partnerships, complicated by Proposition 8:
A domestic partnership is a state-sanctioned legal status that allows unmarried couples, heterosexual and same-sex, to formalize their relationships and which extends some state rights to those couples.
The most populous state allows domestic partnerships. In May 2008, the California Supreme Court legalized gay marriages. Five months later, voters approved Proposition 8, which bans the marriage of same-sex couples. That law has been challenged and is under review by the Supreme Court, separately from the DOMA challenge.
California has community property laws, which is the presumption that property acquired during marriage belongs to both spouses. Registered domestic partners in California have the same community property rights as married couples. During the period gay marriage was legal in California, about 18,000Â couples got married. The Supreme Court is expected to rule on the constitutionality of Proposition 8 by July. If ruled unconstitutional, same-sex marriage would resume in California — and, potentially, similar bans in other states could be affected, as well.
There’s a series of potential outcomes for the Proposition 8 case, says James Esseks, director of the Lesbian Gay Bisexual Transgender and AIDS Project of the American Civil Liberties Union.
“One of them is, gay couples get to get married in California, but it does not affect any other state,” he says. “There is another version that could say every state in the country has to allow same-sex couples to marry. People are not superoptimistic that that is going to happen, but it could happen. Then that would change this issue about whether (same-sex) people can get married at all.”
States that do not allow same-sex marriage, civil unions or domestic partnerships:
Same-sex couples in these states don’t have the benefits and protections that married couples get. They are not allowed to hold title with tenancy by entirety in states where this right is available to opposite-sex couples. With tenancy by entirety, the parties own an undivided part of the property, so a spouse can’t sell his or her interest on the property without permission from the other. When one spouse dies, the property automatically reverts to the survivor without having to go through probate. Tenancy by entirety also protects spouses from creditors as creditors are not allowed to foreclose on the home to satisfy the debt of one of the spouses.
In states with community property laws — which say that property acquired after the marriage belongs to both spouses regardless of who paid for it — the rights are reserved solely for opposite-sex couples.
Generally, same-sex couples in these states own property as tenants in common or as joint tenants with rights of survivorship. These methods are often used by business partners or relatives who own property together. While they grant the homeowners similar rights of joint ownership, they don’t offer the full protection that married couples get. The rules in these states won’t change with the DOMA ruling, unless the court requires states to recognize same-sex marriages performed in other states.