Far too often, couples that live in homes together — married or unmarried — don’t understand how the ownership of their homes is actually structured. In the hundreds of times that I’ve sat down with same-sex couples to review their estates, we’ve uncovered ownership issues as often as not. Many of those less than ideal situations can be updated or repaired easily enough. But I have also seen too many cases in which one half of the couple becomes homeless after a break-up or the death of a partner or spouse.
The problems typically center around unequal ownership stakes. See if any of these scenarios sound familiar. Maybe one of you owned the house before you met. Or, when it came time to buy, one of you had the down payment and the income to pay most of the carrying costs. Now you’re living together and treating the home like it belongs to both of you, but still only one name is on the deed. Other times, the lopsided arrangement happens because one of you has a less than sterling credit history and a lender advises you to put just one name on the deed for that condo or townhouse. Even if you’re splitting the costs down the middle, the person on the deed is the one and only owner.
None of those setups are wrong, per se. It may be the arrangement that makes you most comfortable. But you must understand the risks. Even if that’s how your home-owning relationship started, it doesn’t have to stay that way. Typically, the costs to re-deed property from one person to two people are minimal. You can protect the interests of the original owner with a partnership agreement or a pre- or post-nuptial agreement. But making sure that the surviving spouse or partner of someone who has died has a place to live (in my opinion) overrides almost every other concern.
I believe that one of the shockers in the real estate industry is just how often well-intended property deeds have built-in title problems. You’d imagine that all of the people who handle that part of the transactional process could come up with the right structure with their eyes closed. And you would be wrong. There are THREE ways that couples can hold title to real estate together and each generates a different result when one co-owner dies.
Tenants-in-common means that the share left by a deceased partner goes straight into that person’s estate. If there is no will, that share gets divided among legal heirs, whoever they may be—say, your partner’s estranged brother from Kansas. Even if there is a will, the deceased co-owner’s share goes through probate.
Joint tenants with rights of survivorship is better—and until the legalization of same-sex marriage, it was the best most of us could do. If your home is titled in this way, the survivor inherits the property automatically, though you still have to satisfy any outstanding judgments or liens against the property.
Tenants by the entirety is available only to married couples. It provides the greatest level of protection because it guarantees that the property will go to the surviving spouse automatically, free and clear of most liens that were only against the interest of the person who died.
Even if the terminology makes your head spin, the process of understanding and cleaning up the ownership structure of your home is reasonably simple. First you tackle the practical question of whose name or names should be on the deed. Then you work with an attorney to be sure the deed is drafted properly, that the nature of the relationship between the parties is portrayed correctly, and that the property is described accurately.
If you are preparing to purchase a home, do not assume that settlement agents will automatically title the property in the best way for your circumstances. If you already own a home together, don’t take it for granted that it is titled in the best way—especially if you are married now, but weren’t married back when you made the purchase. I see deeds that are conspicuously wrong almost every week. They are easy and inexpensive to correct, but only if the error is found while both parties are alive and well. If you have a question about any of the real estate topics covered in this column, please don’t hesitate to call me or send me an e-mail.
(This column is not intended to provide legal advice, but only general guidance that may or may not be applicable to your specific situation.)
Lawrence Jacobs has helped hundreds of same-sex couples and LGBT singles in the Washington area protect their assets and loved ones through partnership planning. He is a partner at McMillan Metro, P.C. and has practiced law for 42 years. He is admitted to the bar in Maryland, Virginia and the District of Columbia. Learn more about Larry and his practice at PartnerPlanning.com.