While the law of the land is that same sex marriage couples have the right to marry as ruled by the US Supreme Court, it has taken some time for rulings to be made regarding implementation of this ground-breaking change of the laws.

As it applies to real estate, there is confusion as to how a same sex married couple take title to real property. Historically, married couples take title as “tenants by the entirety” which affords a great amount of protection to the couple with regard to the property. For instance, when a married couple owns property this way, there is a right of survivorship and the property is protected against the creditors of one of them.

If you are a same sex married couple and are about to purchase real estate and you are going to own the property in your individual names, you are entitled to and want to own the property as tenants by the entireties.

That is accomplished by the way your names appear on the deed. Tenancy by the entirety is created when you take title in your names followed by any indication of marriage, such as “husband and wife”, “a married couple” “husband and husband”, “wife and wife” or any other wording that indicates that you are a married couple.

If you already own property and your deed does not contain wording indicating marriage, you can still create tenancy by the entireties through a new deed. Contact an attorney to inquire about having a new deed prepared and recorded.

In addition, you should also check your estate planning documents, specifically your Last Will and Testament, to make sure they properly reflect your marital status.

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