With the U.S. Supreme Court poised to hear the case that could decide the fate of same-sex marriage bans once and for all, legal ground in that area is now uncertain territory. Currently, however, Kentucky does not recognize same-sex marriages, leaving same-sex couples in the state exposed to a wide variety of complex legal problems that heterosexual couples do not encounter. One of these problems is how to title property when purchasing a family home.
There are two basic ways that a same-sex couple can currently hold title to property in Kentucky. One of these forms of ownership is known as “tenants in common.” This form of co-ownership allows two (or more) people to own property at the same time and ownership does not have to be in equal shares. Thus, for example, someone can have a seventy percent interest in the property and the co-owner can have the remaining thirty percent. Upon a co-owner’s death, his or her interest passes to the heir(s) identified in his or her will. The heir becomes a new tenant in common with the original tenant(s) in common. If the decedent passes without a will, his or her interest is dispersed through the probate process, thereby bringing into play the state’s intestacy laws. A tenancy in common allows the decedent to have more control as to whom receives his or her share (provided a will is in place), but the remaining tenant can be forced to share the home with an undesirable, sometimes uncontemplated, individual.
The second form of ownership is “joint tenancy with right of survivorship.” Joint tenancy involves co-ownership, but unlike tenants in common, the interest in the property is equal. Each joint owner has an undivided right to possess the whole property and a proportionate right of equal ownership interest. When one joint tenant dies, his or her interest automatically passes on to the surviving joint tenant(s). A couple may choose a joint tenancy so that a partner can remain in the home upon the decedent’s death without interruption; however, the decedent has no say in who receives his or her share after the remaining partner dies because their interest has already passed.
Same-sex couples must be extra careful when choosing how to hold title and may need to take extra steps to protect each partner’s interest. If a couple is sharing property as tenants in common, it is crucial that each co-owner has a will designating his or her same-sex partner as the heir. It cannot be stressed enough that any joint property ownership by a same-sex couple should be accompanied by a well-written estate plan. Kentucky’s intestacy laws will not account for a same-sex partner and so, without a will, that partner will not be considered for inheritance purposes.
Contact a McBrayer real estate attorney if you are in a same-sex relationship and have questions about an existing deed or how to purchase a property with your partner. We also have estate planning attorneys who can help same-sex couples specify how they wish to divide other property in the event of death or dissolving of the relationship. Until there are equal rights, we can help you level the playing field.
Mary Estes Haggin is a Member of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Haggin practices in virtually every aspect of real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, lease negotiation and preparation, and any and all other needs related to residential and commercial real estate matters. She is located in the firm’s Lexington office and can be reached at email@example.com or at (859) 231-8780.
This article is intended as a summary of federal and state law and does not constitute legal advice.