Recent update from our Pennsylvania underwriter on the subject:
Effective immediately, same-sex couples who marry in Pennsylvania and same-sex couples legally married in other jurisdictions will have all of the same rights, benefits, protections and responsibilities as do any married persons under Pennsylvania law.
1. What is the preferred nomenclature for same-sex couples to take title?
In Pennsylvania, absent intent otherwise specified, a conveyance, release or sale of land to a husband and wife creates an estate by the entirety, and not joint tenancy or tenancy in common. See In re Burns Estate, 40 D. &
C.2d 64 (1966). The preferred nomenclature for both opposite-sex and same-sex couples would be acknowledgment that the individuals are married to one another and are taking title “as tenants by the entirety.”
It is not necessary to identify the couple as “same-sex.”
2. Does Pennsylvania recognize same-sex couples who were married in other states and nations?
Yes, same-sex couples who were or are married in other states and nations that permit same-sex marriage are now considered married in Pennsylvania.
3. Are all the other Pennsylvania title and encumbrance principles applicable to same-sex couples?
Yes, all existing title principles apply equally to same-sex marriages. For example, both spouses who are in title must be identified as borrowers on any insured mortgage and must execute the mortgage. Also keep in mind that existing title principles pertain to analyzing issues involving Pennsylvania inheritance tax and intestate succession for decedents’ estates.
4. Will an owner’s policy of title insurance that was issued to same-sex partners vested as joint tenants with the right of survivorship, continue to insure them when they subsequently marry that partner?
Yes, the policy will continue to provide coverage to an insured for as long as they own an interest in the property.
5. Does a same-sex couple that holds title as joint tenants with the right of survivorship have to take affirmative steps to convert their ownership interest to tenants by the entirety?
Yes, a tenancy by the entirety can be created only by married persons who take title together as a single legal entity. A joint tenancy is not automatically converted by a change in marital status, so the couple must affirmatively record a new deed to themselves converting their ownership to a tenancy by the entirety. Same-sex couples who enter into marriage where one spouse holds title to real estate do not automatically take joint title to such property; the real estate owning spouse must affirmatively change how the title is held, the same as for opposite-sex couples.
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