Husband and Husband as Joint Tenants?

11/30/14 - Recently, an Instruction received by this office brought to the surface a matter of which we had never before addressed. Once same sex marriage became legally recognized in the State of California, how does this affect Clients and how they hold title to real property?

We found this to be a rather interesting question to address as we approached our legal counsel and title officer for guidance and advice.

Ultimately the question was not as complicated as we thought and the answer was really up to the Client. Did they want to be Husband and Husband as Joint Tenants? Did they still consider one of the couple to be a wife regardless of their sex and prefer to take title as Husband and Wife as Joint Tenants (regardless of both individuals being men)? Of course, while we addressed this concern with Male Clients, obviously the same would apply towards female couples who may choose Wife and Wife as Joint Tenants. All of these were possible options.

In the end, the vesting our Clients chose contained the couple’s individual names followed by the phrase “who are married to each other as Joint Tenants”. This was the best overall choice and was approved by both Legal Counsel and Title Insurer.

Frankly, how the Clients would vest once they came into title was the least of their worries. It seems there were potential issues with their loan and the Couple were concerned that they may be experiencing some discrimination due to their relationship status and how it may come into the equation when qualifying for their loan. We were relieved to witness that the Bank treated this couple as any other. Ultimately approving the loan and also allowing the non-qualifying spouse to be on title to the property, as is often the case with conventional marriages.

The question of same sex relationships and related legal matters continues in my mind. A recent addition to the new loan document package these days is in regard to a declaration of Domestic Partnership. Just as I would imagine laws governing conventional marriages now carry over and apply to same sex marriages, laws pertaining to Domestic Partnerships and (Common Law Marriages, if in fact Common Law Marriages are even recognizable in the State of California any more) also now apply to same sex couples. It is rather interesting to think on the matter. Often times it is a Case tried in a Court of Law which ultimately defines how such concerns affect our society and how if applies to everyday situations. Today this is pertinent as we will find more and more often that these issues come to affect our Clients, our friends and our family members. Again, just something interesting to think about. Have a great day!

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