Hoge Partners, PLLC - Louisville, Kentucky - LGBTQ Family Law Issues

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Hoge Partners, PLLC

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Louisville, Kentucky 40202

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Property and Real Estate Rights of Unmarried versus Married LGBTQ Couples

The nationwide recognition of same-sex marriages had a host of impact on all aspects of the lives of LGBTQ individuals.  One of those was real estate.

Previously, a same-sex couple could hold real estate as "tenants in common" OR as "joint tenants with right of survivorship".

"Tenants in common" means each individual owns a share of the property and each individual has the right to live there and enjoy the property.  It usually means the individuals share the cost of ownership (mortgages, taxes, insurance, etc.).  However, if one of the party's should die, then his/her interest in the property would pass not to the other party but instead to the deceased party's heirs. 

"Joint tenants with right of survivorship" means two or more individuals own real estate but, in the event of one party's death, his/her interest would pass to the other individual(s).

TODAY, with same-sex marriage being legal in Kentucky, the state's probate laws will dictate how a deceased party's property and real estate rights are distributed in the probate of the party's estate.  His/her spouse will have special rights by virtue of their lawful marriage with respect to the deceased's estate.

Another mechanism for holding real estate interests in Kentucky is now available to same-sex married couples -- tenancy by the entirety.  Briefly, this is a means of holding real property by a husband and wife in which each of them owns an undivided whole interest in the property, which is coupled with a "right of survivorship" so, when one party dies, the survivor is entitled to the deceased party's share.

Because tenancy by the entirety was only available to married couples, this option was not available to same-sex couples in Kentucky prior to the Obergefell v. Hodges decision in the U.S. Supreme Court in 2015.

Tenancy by the entireties offers same-sex and heterosexual married couples a special form of asset protection.  If one spouse has a creditor and the other party does not have the same creditor, then the creditor cannot go after the first party's interest in that property though the debtor party is still susceptible to attachment of his/her contingent property interest or other assets. 

Further, if the debtor spouse dies before the non-debtor spouse, his or her death extinguishes the contingent property interest.  Even if the lien is still valid against any interest owned by the decedent, execution is no longer available to the judgment creditor.  The judgment creditor cannot force a sale of the property to satisfy the judgment.

Tenancy by the entireties provides this unique asset protection while the couple remains married.  In the event of a divorce, the property interest becomes a tenancy in common and each former spouse’s interest is then fair game for creditors.

In addition, same-sex spouses now have dower and curtesy rights to property in Kentucky.  This means a surviving spouse has an estate equal to one-half of the real property owned by the deceased spouse at the time of death, if the spouse died intestate.  Obviously, the surviving spouse has the option to renounce the deceased spouse's will and instead take his or her dower and curtesy share, as if the deceased spouse had died intestate.



Other LGBTQ Legal Issues:

Gay, lesbian, bisexual, transgendered and non-heterosexual couples and individuals have other significant legal issues besides dependency, abuse and neglect cases, such as:

The attorneys at Hoge Partners, PLLC will be happy to talk to you about your legal options affected by gender identity and/or sexual orientation.  Call us today.