Supreme Court Decision Same Sex Couples Attorney Miami
The Supreme Court of the United States has issued a decision in the case of Obergefell v. Hodges, No. 14-556, 2015 WL 2473451 (U.S. June 26, 2015). The Court held that the United States Constitution does not permit a State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. Additionally, the Court held that the Constitution requires all States to recognize same-sex marriages validly performed in another State.
Title companies in light of the ruling will follow guidelines applicable to all married couples (both same-sex and opposite-sex) are:
Vesting
When any married couple is acquiring title, the deed may reflect marital status. As in all cases, the parties or their legal counsel must direct the title agent how they wish to take title. Some examples may include:
| John Smith and Fred Smith, a married couple | David Doe and Dana Doe, a married couple |
| Susan Jones and Mary Doe, her spouse | Jack Smith and Janet Roe, husband and wife |
Joinder
If any property owner is married, joinder of spouse is required for a conveyance or mortgage of homestead property.
Judgment Liens
If title is held by any married couple with no indication on the vesting deed that they hold title other than as an estate by the entirety, then a money judgment recorded against one spouse may be disregarded, provided a continuous marriage affidavit is recorded. The affidavit must state the couple was married prior to acquiring title and remained continuously married through the date of the transaction or date of death of the judgment debtor, as applicable. Where the vesting deed does not identify the parties as married to each other, then the best practice is to attach a copy of the marriage license as an exhibit to the affidavit. If the vesting deed reflects that the married couple took title in an estate other than an estate by the entireties (such as a joint tenancy with rights of survivorship or tenancy in common), a money judgment may attach.
Estate by the Entirety/Survivorship
The surviving spouse of any estate by the entirety may convey title without requiring probate on the deceased spouse. Estate taxes must be addressed. Additionally, a death certificate and a continuous marriage affidavit must be recorded. The affidavit needs to state the couple was married prior to acquiring title and remained continuously married through the date of the spouse’s death. Where the vesting deed does not identify the parties as married to each other, then the best practice is to attach a copy of the marriage license as an exhibit to the affidavit. If the vesting deed reflects that the married couple took title as tenants in common, probate for the deceased spouse is required.
Policy Preparation
The Company’s position on reflecting marital status in any owner’s policy remains unchanged. Marital status should never be shown.
