Last week Florida Clerks of Court began issuing marriage licenses to same-sex couple. Recent companion decisions by the United States District Court for the Northern District of Florida finding unconstitutional Florida laws that ban same-sex marriage paved the way for this development. (Brenner v. Scott; Grimsley v. Scott, 999 F. Supp. 2d 1278 (2014), and Order on the Scope of Preliminary Injunction dated January 1, 2015).
Presently same sex couples who want to buy a home or property may still confront additional procedural hurdles that other couples would not. This is because Florida law is still unsettled. An appeal of the substantive issues decided in the cases is pending in the Eleventh Circuit Court of Appeals. Additional litigation of same-sex marriage issues in other cases is also a possibility. Further, amendment, repeal or interpretation of numerous Florida laws dealing with marriage, property rights, tenancy by the entirety and the like may be necessary.
Until the legal issues are fully resolved, same sex couples seeking title insurance may need to adhere to the following procedures:
- If a property owner states that he or she is married to a same-sex spouse, joinder of the spouse will be required for any conveyance or mortgage of homestead property.
- When a same-sex married couple is acquiring title, the deed may reflect that the parties are married. (Example: John Smith and Fred Smith, a married couple) As in all cases, the parties, or their legal counsel, must make this decision and advise the title agent as to how they wish to take title.
- When title is vested in a married same-sex couple, judgments against one spouse should be treated as having attached (instead of relying on a tenancy by the entirety).
- When title is vested in a married same-sex couple with no mention of the right of survivorship and one spouse dies, probate should be required (instead of relying on a tenancy by the entirety). Therefore, same sex couples should have probate documents drawn up by a qualified probate lawyer.