In Massachusetts, where I practice real estate law, same sex marriage has been legally acknowledged. In a situation where a same sex, married couple, purchases real estate, I suggest that the Grantee clause read “a married couple, as tenants by the entirety”. Massachusetts law provides excellent protection from creditors to husbands and wives who take title as tenants by the entirety, so I believe it is important to attempt to obtain similar protection for same sex couples who are married. To my knowledge, the validity of this approach has not been tested in a bankruptcy or appeals court, but I am reasonably certain that the protection would be provided if the matter were ever adjudicated.
Many states do not recognize same sex marriages. Many same sex couples in states that permit marriage have not chosen to marry. The question then becomes how to offer solid, enforceable protection to these couples, who do not hold as tenants by the entirety. There are two other ways to hold property in multiple names; tenancy in common and joint tenancy with right of survivorship. The difference between the two types of tenancies (in Massachusetts, at least) is that a tenant in common can leave an undivided one-half interest to his or her heirs, while a joint tenant’s interest passes to the surviving tenant (without the need for a Probate) at death.
Whether a couple owns real property as tenants in common or as joint tenants, there are some “issues” which should be resolved immediately after purchase. My suggestion to my same sex clients is a binding agreement between the two of them which sets forth what will take place between the two parties if there is a “break-up” of their relationship. This, of course, can, and does, happen with same sex relationships in the same way as husband and wife relationships. The difference for married couples is there is a set of laws and decisions which govern divorces. There is no such thing for unmarried couples.
When any of you are involved in a same sex purchase situation, you would be doing your clients a favor if you suggested they address the issue of “what-if” when they are together and happy. The tenancy-in-common agreements I draft provide precise exit terms and conditions, which the parties develop as a couple. Once there is a problem in the relationship, one person’s definition of “fair” may not coincide with the other’s, and painful arguments, and even litigation, may ensue.