Gay Marriage and Homeownership

With gay marriage so much in the news during the last week the Washington Post has a brief story that looks at one of the ways in which LGBT couples are placed at a legal disadvantage when they are denied marriage rights: home ownership and the ability to hold title as "tenants by the entirety." Holding title in this manner adds a great level of protection from claims of creditors unless both members of the couple are on the debt. Thus, credit card debt or an auto loan in the name of one spouse that has gone bad due to a job loss or illness will not be able to attach to the couple's residence unless both were on the card or loan. This is a huge benefit and but one of over an estimated 1000 benefits denied to gay and lesbian couples who are not allowed to enter into civil marriage. Currently, the best that LGBT couples can do is hold title as "joint tenants with right of survivorship," but this form of title provides none of the protections from creditors enjoyed by heterosexual couples. Here are some story highlights:

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One of the benefits to being married is that in many states, including the District, Maryland and Virginia, couples can choose to take title to their home as "tenants in the entirety." It means that each person is 100 percent owner of the house. If one dies, the house is automatically owned by the survivor without the need for probate. And it's much more difficult for a creditor (aside from the IRS) to take away the home because of the non-mortgage debts of only one owner. An irresponsible spouse can't gamble away the house; a spiteful spouse can't sell it out from under the other. In happily-ever-after land, those problems should never come up, but in the real world, they sometimes do, and this kind of ownership is a great protection.

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More gay couples who marry elsewhere and live in Washington, D.C. -- and those thinking of moving here -- will probably be able to take advantage of that protection soon. Yesterday, the D.C. Council voted unanimously to recognize gay marriages performed in other states. The District already allows civil unions that permit partners to hold property as tenants by the entirety.

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Yesterday's action still requires another vote, and Congress always has a say over the District's affairs, so it's not a done deal. But it's a big step closer.