|
Legal Research Library > Deed Vesting ...
 Back To The Legal Research Library
Select an SECTION
NEW ALTA FORMS
| VESTING: SAME SEX MARRIAGE
New ALTA Forms
The American Land Title Association has adopted new title insurance forms. These forms, or variations thereof, will likely be adopted in New York. The article attached hereto explains the changes and enhancements and how they benefit insureds.
Back to Top 
Vesting: Same Sex Marriage
A controversial topic these days is same sex marriages. The question to be considered here is how will New York recognize title to a property held by a same sex couple? The concept of a tenancy by the entirety is an estate created by a conveyance to a husband and a wife, i.e. a man and a woman.
Presently, New York does not recognize same sex marriages. But what if a couple is married in a state that does recognize same sex marriages (Canada or Massachusetts) and then comes to New York and buys real property. The parties request that title be conveyed by John Smith to Howard Gold and William Silvester as tenants by the entirety. How do we proceed?
There does not appear to be a case on point. There are many cases regarding a husband and wife that are not legally married because one party is already married or they never got married but there are no cases that involve same sex marriages. Since the beginning of time, matrimony has been a union between man and woman. EPTL Section 6-2.2(b) states that a conveyance by a third person to a husband and wife creates a tenancy by the entirety. However, a tenancy by the entirety can only exist where there is a valid marital relationship between the grantees at the time of conveyance.
It is not likely that New York will recognize that a couple of the same sex married outside of New York can own property as tenancy by the entirety in NY. Thus, it is recommended that if you come across a last deed of record in a chain of title with two people of the same sex as tenants by the entirety, he or she should vest title as a title in fee with no recital as to the status of a tenant by the entirety, joint tenant or tenant in common. In New York, if a deed recites the couple to be husband and wife and in fact they are not married, a joint tenancy is usually created. I use the word “usually” loosely because there is case law that states that the estate created is a tenancy in common. The courts may look to the exact wording of the conveyance to see the intent of the grantor to create survivorship in the grantees, such as “to Howard Gold and William Silvester, as tenants in common with right of survivorship.”
Back to Top
|
