Title Options for Same-Sex Couples in Washington, DC

When you're working with same-sex couples as a REALTOR, are you talking to them about how they will hold title? The law in the District of Columbia has been evolving rapidly in the last year. Are you aware of their options?

Most agents should be familiar with the options: tenants in common, joint tenants, and tenants by the entirety. With tenants in common, the interests of the deceased pass through probate. With joint tenants, the surviving owner has a right of survivorship; the interests pass outside a will. With these two types of tenancy, either owner can sell his or her share without the consent of the other owner.

Tenants by the entirety also passes outside a will; each owner is seen to own the property in its entirety. Hence an owner cannot unilaterally sell his or her share of the property. Tenants by the entirety can also shield the property from the debts of a deceased spouse.

In Washington, DC domestic partners have been able to hold title as tenants by the entirety since 2008 with the passage of the "Omnibus Domestic Partnership Equality Amendment Act of 2008." (see my earlier blog post: http://activerain.com/blogsview/547297/district-of-columbia-expands-right-of-benefits-of-domestic-partnerships)

Beginning July 7, 2009, Washington, DC will recognize marriages performed outside Washington, DC between same-sex couples. The "Jury and Marriage Amendment Act of 2009" updates DC law as follows:

“Sec. 1287a. Recognition of Marriages from Other Jurisdictions. - A marriage legally entered into in another jurisdiction between 2 persons of the same sex that is recognized as valid in that jurisdiction, that is not expressly prohibited by sections 1283 through section 1286, and has not been deemed illegal under section 1287, shall be recognized as a marriage in the District.”

A quick conversation with clients about their options on holding title is prudent. As soon as settlement is scheduled, referring the couple to a settlement attorney to answer questions regarding holding title gives the couple time to discuss the options themselves and saves them from having to make an instant decision at the settlement table.

The settlement attorney, too, may need some time to become current on changes in DC law as it affects domestic partners and same-sex married couples. Many settlement attorneys will have to check with their title insurance underwriters to ensure that they have prepared the deed properly and that the title insurance couple will insure the deed.

The sooner this discussion is started, the better.