On May 20, 2014, the state of Pennsylvania joined New York, New Hampshire, Vermont, Massachusetts, Arkansas, DC and 12 other jurisdictions in granting full legal recognition to citizens entering same-sex marriages.
While these jurisdictions may have finally made up their minds about their position on who gets to marry, they haven’t settled every question attached to the right to marry.
The question of co-ownership
In states that do not permit same-sex marriage, couples that wish to own property together usually use the joint ownership method: where each partner holds title to half of the property in question. When one partner dies, his or her share of the title automatically devolves to the surviving partner.
When two partners jointly own title to a piece of property in this way, neither is able to sell their share on their own. There is a serious area risk involved, though: if one of the partners owes money to a creditor who wishes to sue for payment, the court may allow their share to be attached.
The co-ownership method, then, is satisfactory.
When you marry there’s an alternative
Married couples pick a different method of joint ownership called tenancy by the entirety. For married couples, this method tends to be recommended by lawyers as the most sensible option of all. Under this method of joint property ownership, when one spouse dies, the surviving partner becomes sole owner. Additionally, when one spouse owes money to creditors, there is no risk of attachment: the property isn’t divisible. This method of joint property ownership is now open to same-sex couples.
When same-sex couples marry, they should move right away to retitle any property they own, making sure that they hold it as tenants by the entirety. Retitling property is a simple process. All one needs to do is to approach a law firm to have a new deed recorded. These deeds do not even attract recordation or transfer taxes.
Not every state allows tenancy by the entirety: Pennsylvania is one of the few that do.
PA LGBT legal issues you need to be aware of
The protections available to married same-sex couples in Pennsylvania are often not available to them when they jointly buy property in other states. If a state does not recognize same-sex marriage, tenancy by the entirety will not be possible for them even if the state allows straight married couples to own property by this method.
Same-sex couples in Pennsylvania, though, do get to take advantage of federal laws related to joint property ownership. The Garn-St. Germain Act is an example. Under this law, all married people get to transfer property to their spouses without having the due-on-sale clause apply. While there is nothing specifically said about same-sex marriages, they are considered covered.
It’s truly wonderful that Pennsylvania finally recognizes same-sex marriage. Couples that wish to get married, though, need to understand that new legal scenarios can come with a few rough edges.