SUPREME COURT GAY MARRIAGE OPINION CHANGES REAL ESTATE OWNERS RIGHTS

The monumental Supreme Court decision in Obergefell vs Ohio changes the landscape of gay rights regarding real estate, marriage, immigration and torts (damages for personal injury).  Here is the nutshell version of how it will affect most gay unions and soon to be marriages as well as those already married in the State of Florida.

TENANTS BY THE ENTIRETY OWNERSHIP                                                       

Tenancy by the entirety provides one of the best asset protection methods in Florida.  Under the law, any property, both real estate and personal property (like cars and bank accounts), if owned as husband and wife, and now by same sex partners joined by marriage, is protected from any judgments and liens against one of the partners but not the other.  To invoke this protection however, there must be definitive proof of the intention to hold the property as a married couple.  This is usually stated on the title of the property (Sam and Jo a married couple).  It can also be evidenced in the records of some third party involved in the property, such as a bank and its records showing the account is designated as a married couple.

HOMESTEAD – REAL ESTATE

Protection of one’s home is paramount to most couples.  Homestead means the real estate is the primary home of the couple.

Deeds and mortgages on homestead property always require spousal joinder regardless of the gender of the spouses.  One spouse cannot divest or encumber the property without the other also joining in their signature.  Also, although a lien can be filed against a homesteaded real property if money is owed by the couple, unless the couple waived the homestead lien protection (as you would in a mortgage signed by the married couple) the lien cannot be enforced against the homestead property.

HOMESTEAD – ESTATES OF DECEDENTS

The surviving spouse elective share of an estate with a Will can now apply to same sex married couples.  This allows a surviving spouse to get at least 30% of the marital home outright and a life estate superior to the claims of any other children of the couple or members of the couple, and extends the homestead lien exemption during that time.  If there is no Will, then it is considered an “intestate” estate and the surviving spouse would get 50% of the home and the children of the marriage the other 50%.

TORTS – PERSONAL INJURY

In the arena of injuries, there is a loss of consortium claim that a spouse can make if married.  Same sex couples that get married now have the opportunity of one spouse to claim a loss of consortium (companionship) even though the spouse was not physically damaged.

IMMIGRATION

A foreign alien same sex married partner can now make family petitions that give a foreign alien spouse married to a US citizen a first preference for immigration to the United States.

HOSPITAL LIENS

Married couples have the unique obligation of being responsible for each other’s medical bills.  Same sex married couples – welcome to that obligation.  This is one reason it is all the more important for homeowners to invoke the homestead protections.

WHAT YOU SHOULD DO NOW –

The big question is what should be done if you are already a married same sex couple but your documentation in Florida evidences just two same sex persons?  And what actions should you take if you are about to become a same sex married couple?

Understand this court decision just came out on June 26 2015.  Likely the law interpretation of the United States Constitution will cause the state legislatures to re-write many laws that would now be deemed unconstitutional.  Also the legislatures will have to change some wording in some laws as to application.  The next question will or even can these changes be deemed retroactive?

1.  Same sex couples should be mindful of the naming of accounts in banks, titles to large asset items and of course the title on real estate.  For real estate, a new deed that deeds the property from the unmarried couple to the married couple as tenants by the entirety would be appropriate.  In some cases, an affidavit to the same effect could be sufficient.

2.  Consider filing a declaration of homestead for the marital property.  This is done at the county clerk’s office.

3.  If you are involved in an injury claim where a claim can be made by a spouse, speak to your plaintiff counsel to determine if such a claim is now feasible to be made.

4.  If you don’t have a Last Will and Testament, consider that now is an excellent time to consider the future and the proper disposition of your property.

5.  If you are a non-resident alien coupled with a same sex partner, now is an excellent time to consider a legal union and taking the road to US citizenship.

The above is truly a broad summation of what first comes to mind regarding the impact of yesterday’s decision.  More effects will certainly be uncovered over a relatively short time.  Legislatures for 2016 will have their hands full sorting this out with the state laws and changes that are now mandated.  But for same sex couples – now that the law is changed and everyone is on the same playing field, that also means same sex couples have to deal with the advantages and disadvantages of legal marriage.

 

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© 2015 Richard P Zaretsky, Esq.

 Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.

Our legal services have expanded and we now offer real estate transactions, development, contracts, litigation, title insurance, closing services, commercial transactions, commercial litigation, family law and immigration law services.

Richard Zaretsky, Esq., AUTOMATED LAND TITLE COMPANY and ZARETSKY LAW GROUP, ATTORNEYS AT LAW, 1615 FORUM PLACE, SUITE 3A, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 RPZ@zaretskylaw.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW – REAL ESTATE REPRESENTATION THROUGHOUT FLORIDA - Website www.Florida-Counsel.com. 

 

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