Same Sex Marriage & Real Estate

​Same Sex Marriage & Real Estate

​​​In January 2015 the Supreme Court of the United States issued an historic and groundbreaking ruling in Obergefell v. Hodges which held that the fundamental right to marry is guaranteed to same-sex couples by both the due process and equal protection clauses of the fourteenth amendment of the U.S. Constitution.  So what does this mean with respect to real estate in Florida? Well…

1. In Florida when a married couple takes title to property, title is taken as “husband and wife”, “wife and wife” or “husband and husband” which automatically defaults to the protective status of “Tenants by the Entireties” (“TE”).  TE status means that upon the passing of one spouse, title will automatically transfer to the surviving spouse without the need for a probate administration.
2. TE status also provides greater creditor protection when the property is your homestead meaning that the only judgments that can be enforced against your homestead are: debts arising out of the property itself (mortgages, construction liens, etc.), taxes or domestic support obligations (child support or alimony).
3. In Florida, you cannot encumber or transfer your homestead without the consent of your spouse and the Florida constitution provides strict guidelines for the devise of homestead property when survived by a spouse or minor children. 

For more information on how the landmark Supreme Court decision affects your rights in a same sex marriage, please call our firm to discuss.