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For most gay and lesbian couples, buying a house together is not only an indication of a major commitment to each other, it is more often than not the most expensive single purchase you will ever make as an individual or as a couple. Because most property laws were written to protect individuals and married couples (who are viewed under most state laws as one entity) it is crucial that as gay and lesbian couples we understand that we must create the contractual and legal documentation which will provide us with the protection granted automatically to married couples. If these simple protections are not created, the death of yourself or your partner may result in a new partnership with family members of the deceased. Sometimes that's not a bad thing...sometimes it's a disastrous burden for a grief-stricken survivor!
If the general rule of purchasing real estate is "Location, location, location" then the gay and lesbian rule of real estate should be "Get a lawyer, get a lawyer, get a lawyer! And only a real estate lawyer...preferably one who already understands the critical issues of gay and lesbian property ownership. Visit our links page for a referral!
Here are a couple of major pitfalls to be aware of in purchasing property as a gay and lesbian couple:
If you want your rights to your property to go only to your partner immediately upon your death, you must take title to your property by JOINT TENANCY WITH RIGHT OF SURVIVORSHIP...not individually and not just by joint tenancy. Taking title any other way will require probate upon your death and may result in the deceased partners "heirs at law" becoming owners of the property along with the surviving partner. The heirs may then sue for partition and force the surviving partner to sell or move out of the property. (Note: You do not need to both be on a loan to have the title taken in two names!
In some states special laws called "Homestead laws" protect the rights of a spouse and/or minor children of a married person or a parent. These are not to be confused with "Homestead exemptions", which refer to taxation. If you were previously married, then purchase property with your partner and your divorce was not finalized or was flawed, your former spouse may have rights to your property...your minor child may also have rights to your property even if the divorce was finalized. If your former spouse has custody of your child, you may be dealing with your former spouse as a partner in real estate ownership again because of his or her status as guardian for your child if you are not careful with how you take title to your property.
Sometimes one partner may have significantly more money to invest in a property than the other partner. Unless the partner with more money invested in the property is willing to share 50/50 with the other partner, consideration should be given to other forms of protecting each persons interests. 50/50 partnership may not be possible or desirable under certain circumstances. Sharing a home together is often more important than the percentage of ownership each partner has in their home. Perhaps one partner already owned the home in which a new couple is living. If the real concern is more about the security of the partner who has no ownership interest in the home, then provisions to protect the security of the non-owning partner might be more easily made by will rather than by changing the title. Get good gay-friendly and gay-knowledgeable legal advise before you purchase property with your partner.
Feel free to give us a call with any questions or referrals for real estate and trust lawyers!
Gay and Lesbian Couple's Guide to Home Buying
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