By Derek Jorgensen
On January 6, 2015, the 11th Circuit Court of Appeals denied Florida’s request to issue a stay challenging Florida’s ban on same-sex marriage. While same-sex couples’ right to receive a marriage license now seems clear in Florida, how they buy their first home together as a married couple remains unsettled.
When purchasing a home, the deed is one of the most important legal documents evidencing ownership of the property. The grantor is the individual transferring the property, and the grantee receives it. Since the focus of this article is on married couples buying a home, there are going to be two grantees. When there is more than one grantee, one of three basic tenancies will be created in the deed. The three tenancies are: tenancy in common, joint tenancy with the right of survivorship, and tenancy by the entirety. A tenancy in common gives each owner the option to sell, lease, or bequeath their respective interest in the property. Under a joint tenancy with the right of survivorship, all tenants have equal interests and possession rights with the property. Additionally, when a joint tenant dies, his or her interest will automatically be distributed to the remaining tenants- meaning probate is not required when the tenant dies. Finally, there is the tenancy by entirety. It is a special interest that is only available to married couples. If the names of the individuals on the deed are those of a married couple, Florida automatically presumes a tenancy by the entirety. The benefits of a tenancy by the entirety are similar to a joint tenancy, but come with additional protections against creditors, certain taxes, and transfers.
With same-sex marriage now recognizable, this language should automatically trigger a tenancy by the entirety; but it is uncertain whether Florida will recognize a tenancy by the entirety for same-sex couples. Title insurance underwriters have stated that judgments against one spouse should be cleared, and probate will be required if one spouse dies unless they took title as joint tenants with right of survivorship. And until these issues are resolved, same-sex spouses going into title should consult with their attorney which tenancy meets estate planning goals appropriately.