On July 24, 2011, the Marriage Equality Act was signed into law, making New York the sixth state to allow same-sex marriages. While the Act affects a wide range of issues, such as spousal support, insurance coverage and health care, this article will focus on the effect of the Act on areas related to title insurance.

Real Property: Ownership Interests

As of July 24, 2011, same-sex couples may now hold title as tenants by the entirety. To create the tenancy by the entirety, a deed should specify that the parties are taking title as tenant by the entirety, or as married persons. However, New York presumes that a deed that is conveyed to two individuals without stating the manner in which they are taking title will take as tenants by the entirety if they are in fact married at the time of the conveyance. Couples who own property but who are not married take title as tenants in common, and their subsequent marriage will not alter the manner in which they hold title.

Since the act is not retroactive in effect, same sex couples who acquired title prior to July 24, 2011 may want to consider recording a deed to change their ownership to a tenancy by the entirety. A change from a tenancy in common to a tenancy by the entirety will give each spouse survivorship rights. Upon the death of one spouse, the surviving spouse becomes the sole owner of the premises. Couples who held as joint tenants, and who therefore have survivorship rights, may want to convert their ownership to a tenancy by the entirety to take advantage of creditor protection rights unique to a tenancy by the entirety. Specifically, a tenancy by the entirety provides some protection for a judgment that is enforceable against only one of the spouses. In the event of enforcement, the interest of the debtor spouse can be sold under execution. However, the purchaser of that interest is only entitled to a share in the rents and profits, and is not entitled to occupancy of the premises. Furthermore, in the event that the debtor spouse does not survive the non-debtor spouse, the creditor's interest in the premises is extinguished, and the non-debtor spouse becomes the sole owner of the property.