It might be overlooked with all of today’s medical, political and financial tensions. But marriage equality is progressing well.
- In the 2015 Obergefell v. Hodges decision, the U.S. Supreme Court held that “the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”
- In 2016, the U.S. Department of Housing and Urban Development completed a set of rules prohibiting housing discrimination because of gender identity or sexual orientation.
- And in 2021, Colorado became the first U.S. state to include same-sex couples in its definition of common-law marriage.
Why might a partner want to prove a common-law marriage has occurred? Perhaps to ensure fair division of the couple’s assets after the relationship breaks down. Perhaps to receive an inheritance without a will from a partner who died without a will.
Colorado’s Before-and-After Views of Common-Law Marriage
This year, Colorado’s Supreme Court adopted a gender-neutral standard for common-law marriage. Now, when a Colorado court determines whether a couple is married under the common law, it looks to the couple’s intent and conduct supporting that intent.
The previous standard in Colorado, dating from 1987, applied a boilerplate-style set of formal facts to find a common-law marriage. Judges went down the list looking for things like joint tax returns, and both parties having the man’s last name.
But marriage is evolving, and couples are unique. Plus, the context of their relationships — including cultural factors — must be considered. One couple, for example, could say “partner” to mean marriage partner, while another doesn’t. Some couples take on a single last name. Some take both names. Some just keep their original last names.
Colorado’s new standard will tap the wisdom of judges as to how social realities impact same-sex couples, too. They might ask: “Why do these two people in court today hesitate to hold themselves out as married?” There can be many reasons. Research published by Freddie Mac shows that same-sex home buyers have serious concerns about discrimination. They’re right. Lender bias is common. So, just because a couple keeps a relationship low-profile doesn’t mean they don’t have a common-law marriage.
Where Common-Law Marriage Exists
To be sure, common-law marriage has been in decline in recent decades. Colorado, plus the District of Columbia and the following states, acknowledge common-law marriage:
- Alabama (if entered before Jan. 1, 2017)
- Georgia (before 1997)
- Idaho (before 1996)
- Iowa
- Kansas
- Montana
- Ohio (before Oct. 10, 1991)
- Oklahoma
- Pennsylvania (before 2005)
- Rhode Island
- South Carolina
- Texas
- Utah
And New Hampshire recognizes common-law marriages for inheritance distribution only.
If your common-law marriage is valid in its own state, it is valid in other states, too. Also, even in states that have phased out common-law marriage, the status may still be proven if the relationship was entered into when your home state recognized it. (Kudos to The LGBT Bar for so clearly laying this out!)
Helpful for All Committed Couples Who Don’t Fit the Traditional Profile
Colorado is the first to update common-law marriage into a gender-neutral form. The update will be helpful not only for same-sex couples, but also for Colorado residents who don’t fit the traditional marriage profile.
Today’s marriage partners don’t all prepare taxes jointly, hold insurance policies together, or share the titles to their cars. Many life partners, no matter their sex or gender identity, opt not to raise children together, and their styles of homeownership vary to suit their unique situations.
Also notable is the Colorado Supreme Court’s recognition that same-sex couples may have been in a common-law marriage even before 2015, when same-sex marriage was legalized nationwide. This is important because the length of a marriage can qualify life partners for certain benefits. And if the relationship breaks down, the length of the marriage is an important factor when a court oversees the fair and proper distribution of assets.
Colorado Marriages Are Deemed Partnerships
Colorado and most other states look at marriage as a partnership. This view applies to common-law marriages as well. After one partner passes away, the law directs the survivor to receive a certain portion of the estate in probate.
But Colorado is not a community property state. Colorado (like most states) uses the equitable distribution model should the marriage dissolve. This means the couple’s assets, including a jointly owned home, are divided fairly under the circumstances — if, that is, the partners haven’t successfully agreed on how to divide what they own.
But some couples do buy homes in community property states, such as Arizona, Texas, California, Idaho, New Mexico, Louisiana, Nevada, Washington, and Wisconsin. And some use special community property trusts (see Tennessee, South Dakota, and Alaska). Consider California, where a couple owns all the assets and debts accumulated by either or both of them during a life partnership. They may opt to hold community property with a right of survivorship, or not. If they wish, they can deliberately vest assets as sole and separate property as individuals. And each partner owns what was theirs before their marriage, or individually inherited. What does this mean for the house title? The house can be titled in just one partner’s name. To remain the sole possession of only one person, it has to be carefully maintained with money drawn from a separate account.
Community property can have significant tax advantages. In states that recognize it, residents should speak with their tax experts before vesting home ownership.
And this brings us to…
How Same-Sex Couples Can Vest Their Home Titles
LGBTIQ home buyers need to vest their deeds appropriately. They should ask themselves the following four questions:
1. Will the Partners Have Rights of Survivorship?
A deed may name life partners as joint tenants with the right of survivorship, so the surviving owner is protected if one person passes away. No need to go through probate. No will contests. After recording the death certificate and an affidavit of survivorship, the surviving owner becomes the sole title holder. Co-owners (married or single) own equal shares if they vest their house title with survivorship rights.
Traditionally, couples tend to hold their property as joint tenants with rights of survivorship.
2. Or Do They Prefer to Bequeath Their Interests to Others?
Increasingly, co-owners are deciding not to pass their titles to each other upon death. Some co-owners might have children from previous relationships, and want to name them in a will. If the two partners are tenants in common, then either one may leave their interest to their own children.
Thinking of vesting your title this way? In the future, your partner could then co-own the house with your adult child. Be sure that possibility makes sense to all of you. For life partners with children from prior relationships, rights and responsibilities can be complicated. Consult a family law expert before vesting.
3. Will They Share Ownership in Equal or Unequal Percentages?
Couples could also opt to hold property as tenants in common in order to divide the homeownership in different percentages. For example, the title could say Martin owns 60% while Mario owns 40%. Perhaps Mario is paying a lower portion of the mortgage. (A mortgage lender usually insists that both co-owners are named as borrowers on the mortgage.)
As we noted above, should one owner die during the tenancy in common, the home won’t automatically vest in the co-owner. Indeed, at any time, either owner is free to transfer or will their individual interests to anyone — to each other, or someone else. Some partners use a will or a transfer on death deed to protect a surviving partner’s interest.
☛ Friendly reminder: Be sure not to die without a will.
4. Does the State Allow Tenancy by the Entirety? It’s a Valid Choice for Same-Sex Partners
Since 2015, all legally married couples, same-sex couples included, may title their home as a tenancy by the entirety (TBE). It’s is a highly protective vesting option that exists in several states and may apply to domestic partners as well. When one owner dies, the survivor automatically owns the property. Each co-owner is protected from most debt obligations incurred by the other.
Check your current state code, and consult a lawyer in your state to draft the vesting language that suits your needs. Real estate laws change (and in 2021, the Colorado Supreme Court again proved that point)! Some state codes still use “husband and wife” or similar terms in TBE language. Yet federal definitions of marriage partners are shifting to gender-neutral language.
☛ Colorado’s standard shows how common-law marriage can compatibly exist with a respect for everyone’s sense of self. See Preferred Pronouns in Real Estate Deeds on Deeds.com to consider how the identification of people on a house deed can co-exist with gender neutrality, too. We recommend speaking with a real estate attorney for advice and assistance on drafting an effective, accurate document.
What Happens to the Title When Couples Split Up
A state-specific quitclaim deed or deed without warranty is often used to release one party’s ownership interest, citing the dissolution of marriage. (Important note: A quitclaim does not release anyone from a signed mortgage agreement; that is a separate obligation.) Both partners must sign the quitclaim, stating that the quitclaiming party is releasing the whole property.
If, after your separation, you decide to co-own your home with a new partner with survivorship rights, you must use the deed to transfer a 100% interest to both names (not just a half-interest).
☛ Bringing a new co-owner onto your title? Seek professional legal advice to make informed decisions about financing and titling your property together.
The Dream of Owning a Home Together: We’re All Entitled
To learn more about how a common-law marriage state impacts your home ownership as a couple, hire a lawyer experienced in property law for same-sex couples. And wherever your current marital status stands, don’t forget to sit down with your accountant or tax expert. You’ll benefit from professional guidance as applied to your own situation, and you’ll learn about current choices in real estate co-ownership that may reduce your personal liabilities and risks.
Supporting References
Obergefell v. Hodges, 576 U.S. 644 (2015).
Shelly Bradbury for the Denver Post: Colorado’s Supreme Court First in U.S. to Revamp Common-Law Marriage for Same-Sex Couples (Jan. 11, 2021).
The LGBT Bar: Retroactive Common Law Marriage Provides Pathway to Rights & Benefits for Same-Sex Couples (May 15, 2018).
Deeds.com: LGBT+ and Real Estate Ownership: Navigating Mortgages, Titles and Deeds (Aug. 24, 2020).
Deeds.com: Marriage and Real Estate: A Brief Tour (Jan, 27, 2020).
Photo credits: Wokandapix via Pixabay.