A lesbian couple moves out of Dayton and sells their home. Only one of them actually has her name on the title. They are legally married in the state in which they now reside. Since Ohio is a dower state, meaning a spouse has a legal claim on any real estate owned by the other spouse. For heterosexual couples, the spouse also has to sign closing documents. In the wake of the recent Supreme Court ruling on DOMA, how does that affect same-sex couples in Ohio? Is a same-sex spouse entitled to dower rights? Note: I am not a lawyer. This article is for general information only. All legal concerns should be discussed with your attorney.
Realtor Magazine recently took up this issue to discuss how the DOMA ruling affects title and real estate, and while in some states this isn’t an issue, in the case of my clients above, it was a bit more confusing.
While the dismantling of DOMA provides clear-cut benefits for married gay couples who reside in the states they were married in, it creates significant ambiguities in other situations. For example, the immediate future is murky for partners who were legally married in one state but move to a state that does not recognize their union. For now, these people are caught in a confusing tangle of laws.
After the DOMA ruling, I called the title company handling the transaction for my clients, and they were not quite sure how this title transfer needed to be handled either, and had to discuss it with their legal department- which is going to be the best way to handle title questions among same-sex couples, as Realtor Magazine points out.
For real estate practitioners, “understanding the status of [your clients’] relationship is critical if you are in a jurisdiction that recognizes marriage” for gay couples, says Los Angeles attorney Wendy E. Hartmann, who specializes in tax and estate planning for same-sex couples. Practitioners should, however, encourage couples to obtain legal advice on such title and tax matters from an attorney, she noted.
It’s important to understand how title affects you:
Before the court decision, gay couples did not have the option to hold title through “tenancy by the entirety,” which is available only to legally married home owners. Like joint tenancy, this form of ownership means each spouse owns 100 percent of the property and an equal right to possess the home, and provides that when one spouse dies, the surviving spouse automatically becomes the property’s sole owner. Unlike joint tenancy, however, under tenancy by the entirety the home is more fully protected from creditors.
For my clients, the answer was No, the state of Ohio is not going to require the spouse to sign documents as the marriage is not legally valid here, alas. But going forward, the ramifications of the Supreme Court ruling and its impact on real estate are going to be complex as we work our way through them. If you don’t have a lawyer who has a niche business in LGBT issues, now would be a good time to find one.
Note: As always, I am not a lawyer. This article is for general informational purposes and should not be considered legal advice. Please discuss any specific issues with your own attorney.
