When you purchase a home with your LGBT partner, you will need to designate how you would like to hold ownership. Unfortunately, many partners do not understand the ramifications of home ownership until it is too late to do anything about it. Depending on the state that you live in, following are the advantages and disadvantages of different forms of same sex home ownership.
Joint Tenancy with Right of Survivorship
This designation means that when a partner dies, ownership of the home will transfer to the surviving partner as a matter of law. The advantage of this type of ownership is that there is no need to go through probate court to claim ownership of the home. You would simply take the death certificate to the register of deeds in the county where the property is located or file for a new deed in your name indicating that one of the owners is deceased. It should be noted that if there is a mortgage on the home, it will remain after the partner’s death unless he or she had some type of insurance that pays the mortgage in full upon death.
The disadvantage, in some cases, is that you both have equal control of the home during your lifetime. This means that you cannot get a loan against the home, sell it, give it away or will it to anyone else without your partner’s permission. Even if a partner bequeaths his interest in the home to another party in his will, it will have no effect and his interest will still revert to the surviving partner. If you decide you would like to sell the home and your partner will not agree, you could go to court and request a partition or a sale of the home. This generally becomes an issue when a relationship breaks up and one partner wants to keep the home.
Another disadvantage of this type of ownership is that either partner can break the designation. All that is needed is for one partner to go to the register of deeds and transfer his or her interest in the home to tenancy in common. That action automatically destroys the joint tenancy with right of survivorship designation.
Tenancy in Common
With this designation, both partner’s own a percentage of the home. The percentages do not have to be equal. For example, one partner could own 60 percent and the other 40 percent. The portion owned by each party is generally dictated by the amount that each partner contributed to the purchase of the home.
The disadvantage is that when one partner dies, ownership does not automatically transfer to the surviving partner. His or her half interest in the home will be distributed according to a will, if he had one, or according to the state’s intestacy laws where he resided. Intestate means to die without a will. Homes owned by tenancy in common do have to go through probate, even if the partner left a will designating the surviving partner as the beneficiary.
The exception to the above is when there are liens against the home, or the deceased’s estate does not have enough assets to pay off his or her final debts. In that case, creditors could file for a partition in a court of law to sell the home.
The legal ramifications of home ownership designations can be confusing. In order to protect your rights, you should speak with an LGBT real estate agent or attorney who is knowledgeable on the local state laws regarding real estate. If you and your partner are considering purchasing a home together, you should contact a reputable LGBT real estate agent by conducting a search on GayRealEstate.com. He or she will be aware of the local and state laws and ordinances that affect home ownership and will know a reputable attorney in the area that can advise you of your options related to home ownership.