Gay Marriage- Make sure to update your deeds and wills!Monday, October 20, 2014
Congratulations to gay couples who now can enjoy full legal recognition of their married status!
One of the most powerful tools under North Carolina real estate law is to hold property by Tenancy by the Entirety. This is only available to married couples and thus was unavailable to gay couples until just recently! We recommend strongly that all existing deeds be updated to reflect the language “Married, Tenancy by the Entirety” for all married couples. See a more detailed explanation below.
Similarly, we recommend that all gay married couples update their wills and estate planning documents immediately to reflect their proper married status. Certain advantages and privileges are reserved only to spouses under North Carolina law. UPDATING YOUR DOCUMENTS IS ESSENTIAL!
Here is a quick primer on TBTE:
Tenancy by the Entirety is a type of concurrent estate in real property held by a married couple whereby each owns the undivided whole of the property, coupled with the Right of Survivorship, so that upon the death of one, the survivor is entitled to the decedent’s share.
A Tenancy by the Entirety allows spouses to own property together as a single legal entity. Under a tenancy by the entirety, creditors of an individual spouse may not attach and sell the interest of a debtor spouse: only creditors of the couple may attach and sell the interest in the property owned by tenancy by the entirety.
There are three types of concurrent ownership, or ownership of property by two or more persons: tenancy by the entirety, Joint Tenancy, and Tenancy in Common. A tenancy by the entirety can be created only by married persons. A married couple may choose to create a joint tenancy or a tenancy in common. In most states a married couple is presumed to take title to property as tenants by the entirety, unless the deed or conveyancing document states otherwise.
The most important difference between a tenancy by the entirety and a joint tenancy or tenancy in common is that a tenant by the entirety may not sell or give away his interest in the property without the consent of the other tenant. Upon the death of one of the spouses, the deceased spouse’s interest in the property devolves to the surviving spouse, and not to other heirs of the deceased spouse. This is called the right of survivorship.
Tenants in common do not have a right of survivorship. In a tenancy in common, persons may sell or give away their ownership interest. Joint tenants do have a right of survivorship, but a joint tenant may sell or give away her interest in the property. If a joint tenant sells her interest in a joint tenancy, the tenancy becomes a tenancy in common, and no tenant has a right of survivorship. A tenancy by the entirety cannot be reduced to a joint tenancy or tenancy in common by a conveyance of property. Generally, the couple must Divorce, obtain an Annulment, or agree to amend the title to the property to extinguish a tenancy by the entirety.