I recently met with a same-sex couple looking to buy their first house together. They were concerned about how they could own real estate together since the State of Florida does not recognize their marriage. And they were hoping that the Supreme Court’s marriage ruling would benefit them. Unfortunately, the ruling is not likely to effect real estate law for quite some time.
Just this week, a timely article came out in Florida Realtors, illuminating some of the issues that face same-sex couples who want to own real estate together.
Same-sex couples, as well as unmarried couples, are not protected by real estate law in the way legally married couples are. Generally, and in the State of Florida, a legally married couple buys a home as “Tenants by the Entireties,” a legal status of ownership that gives the spouse certain rights. Tenancy by the entirety is a special joint tenancy with the unseverable common law right of survivorship. If one dies, the surviving spouse automatically owns the property with no further legal action required. Additionally, one may not sue the other to partition the property, both spouses signatures are required to sell the property, they cannot sell their interest alone and a creditor of one may not claim the property or the proceeds of sale.
Same-sex couples can, however, set up a trust agreement for ownership of the house that creates a similar bundle of rights defining management of the house and disposition of the house in the event of death or termination of the relationship. Certain types of trusts can even provide for protection from creditors.
My best advise… if you are not legally married and want to buy real estate with your partner, contact an excellent real estate attorney to help you sort this out. Let me know. I’d be happy to refer you to an attorney who specializes in real estate law.
I am a luxury residential real estate professional. If you would like to schedule a buyer or seller meeting, please give me a call at (305) 898-1852 or email me at Wellins.D@ewm.com.