Real Estate Law – Same Sex Marriages And Title To Property

Introduction.

Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company. Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company. If you have any questions regarding this article or any other questions, you may contact Mr. Cuevas at (305) 461-9500 or via e-mail at [email protected]. If you are interested in reading previous newsletters, please visit www.cuevaslaw.com, select the icon for Newsletters, and then choose the area of law you are interested in.

Same Sex Marriage – Steps for Title To Property.

Same-sex marriages became legal on January 6, 2015 in the State of Florida as a result of the United States Supreme Court denial of a request of a stay preventing the recognition of same-sex marriages from other states. Until this ruling, same-sex couples were trapped in a legal limbo sometimes known in gay and lesbian circles as “wed-lock.” They had married in other states but Florida considered their union illegal and would not divorce them. The mere act of entering the State of Florida resulted in same-sex married couples to not be considered legally “married”. If same-sex married couples moved to and resided in Florida they also could not divorce in Florida since their legal union was not recognized, nor could they divorce in the State where they were married because of long residency requirements for divorce. On January 6, hundreds of jubilant same-sex couples made history by lining up all over Florida to exchange vows after a federal judge overturned the state’s ban on same-sex marriage. The Florida Clerks of Court started issuing marriage licenses to same-sex couples as a result of these rulings. So how does this affect real estate law?

Florida law is still unsettled as this change is new. An appeal of the substantive issues decided in the cases is pending in the Eleventh Circuit Court of Appeals. Additional litigation of same-sex marriage issues in other cases is also a possibility. Further, amendment, repeal or interpretation of numerous Florida laws dealing with marriage, property rights, tenancy by the entirety and the like may be necessary. Until the legal issues are fully resolved, certain care should be taken in considering the impact on real property and ownership rights. Our Title Insurance Underwriters have given instructions with regard to the issuance of title as follows:

1. If a property owner states that he or she is married to a same-sex spouse, joinder of the spouse will be required for any conveyance or mortgage of homestead property.
2. When a same-sex married couple is acquiring title, the deed may reflect that the parties are married. (Example: John Smith and Fred Smith, a married couple). As in all cases, the parties, or their legal counsel, must make this decision and advise the title agent as to how they wish to take title.
3. When title is vested in a married same-sex couple, judgments against one spouse should be treated as having attached (instead of relying on a tenancy by the entirety).
4. When title is vested in a married same-sex couple with no mention of the right of survivorship and one spouse dies, probate should be required (instead of relying on a tenancy by the entirety). This can be prevented by same-sex couples executing corrective deeds if in fact the original deed to a property shows solely one of the spouses as the owner.

The law as it affects real property will be changing with the times, but since it is a moving target the bulls-eye is not yet clear. Therefore, for real estate transactions involving same-sex marriages, disclosure of the relationship on all documents affecting title is very important.

This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice. All persons who may be affected by these issues should consult with their legal counsel to obtain explanations of all issues addressed herein and what steps would be necessary to protect their legal rights.