Home title options for same-sex couples in Maryland
The nuances of co-ownership is an important consideration when purchasing a property or adding a partner to a deed. Whether you are married or not, there are a few options to pursue. Thanks to Roy Kelley of Re/Max Realty Group in Montgomery County Maryland for writing this article.
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Home Title Options for Same-Sex Couples in Maryland
Co-ownership of a residence
Maryland is among the dozen or so states plus the District of Columbia that recognize same-sex marriages. As same-sex partners get married, one of the questions is how they should take title to a co-owned residence.
There are three basic options for married co-owners to take title in a residence in Maryland. Co-owners can take title as tenants in common or joint tenants with rights of survivorship. Married couples have the option to take title as tenants by the entirety.
We always advise co-owners to seek legal advice on the form of ownership that will best meet their personal objectives. When they take title as tenants in common, co-owners each share a percentage of ownership. Each co-owner can sell or borrow against the ownership interest. And, co-owners as tenants in common can bequeath their individual interest in a will. A possible disadvantage of being tenants in common is that creditors can attach that co-owner’s interest in the real estate to satisfy claims.
Joint tenants with rights of survivorship each own their pro-rata share of the residence. When there are two joint tenants, each is deemed to own a fifty percent interest in the real property. A joint tenant cannot sell or use the individual interest as collateral for a loan. A joint tenant is not allowed to bequeath the individual interest in a will. Upon the death of one joint tenant, his or her interest automatically transfers to the surviving joint tenant. A major consideration is that property held as joint tenants is subject to claims against all other joint tenants.
In Maryland, tenancy by the entirety is the strongest form of ownership for married couples. When one tenant dies, the surviving person automatically becomes the sole owner. The primary benefit of tenancy by the entirety is that the claims against one tenant do not attach to the residence that is co-owned. There is an exemption for claims by the Internal Revenue Service.
Complications may arise when same-sex couples are married in Maryland but co-own a residence in another state. Virginia, for example, does not recognize same-sex marriages. Until there is further clarification of Virginia laws, same-sex married couples may be limited to home ownership as joint tenants with rights of survivorship.
In states that do not recognize same-sex marriages, it is important not to trigger due on sale clauses in mortgages when changing the form of ownership. Again, same-sex married couples should obtain legal advice on the best form of ownership in the state in which the residence is to be co-owned.
Thanks to Maryland attorney Harvey S. Jacobs for providing information on Maryland law as the basis for the content of this blog.
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