Are you prepared to discuss real estate and vesting on deeds with your clients since Florida is issuing same-sex marriage licenses?

Read on for one Underwriters perspective.

Old Republic continues to monitor the law regarding same sex marriage, but currently it is still unsettled. Until there is a definitive ruling, our position is as follows:

When both spouses are going into title, you should put their marital status on the deed as instructed. They should tell you how they want to take title (i.e., a married couple, married to each other, husband and husband, wife and wife, etc.).

If they do not tell you, you should ask them if they want title vested “as joint tenants with rights of survivorship” or “as tenants in common.” If they do not know, advise them to consult with their attorney to discuss which method adequately meets their estate planning goals for the future. Right now, it is not clear if Florida will be recognizing a tenancy by the entirety (which is automatic when someone takes title as “husband and wife”).

At this point, since we don’t know yet if Florida will be recognizing tenancy by the entireties, judgments against one spouse should be cleared, and a probate will be required if one spouse dies and the grantees did not take title as joint tenants with right of survivorship. If only one spouse is on title, you will need joinder of the other spouse on a mortgage or deed for homestead rights. Commitments should include this in the requirements section if the owner tells you he/she has been legally married in a same-sex ceremony (just like we do now with heterosexual marriages).

We are here to help if you have any questions.

Note: No legal advice or suggestions are being given.
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