There has been a lot of celebrating in the past few weeks with the US
Supreme Court’s decision not to hear Virginia’s same sex marriage case,
thereby leaving same sex marriage in Virginia to proceed full steam
ahead. With this momentous decision, however, same sex couples need to
understand where some of the law has not caught up yet. Real estate is a
good example. The way property is owned as a husband and wife provides
the married couple additional protections in death and debt. Below is
the current statute:
§ 55-20.2. Tenants by the entireties in real and personal property; certain trusts.
A. Any husband and wife may own real or personal property as tenants by
the entireties. Personal property may be owned as tenants by the
entireties whether or not the personal property represents the proceeds
of the sale of real property. An intent that the part of the one dying
should belong to the other shall be manifest from a designation of a
husband and wife as "tenants by the entireties" or "tenants by the
entirety."
B. Any property of a husband and wife that is held by
them as tenants by the entireties and conveyed to their joint revocable
or irrevocable trusts, or to their separate revocable or irrevocable
trusts, shall have the same immunity from the claims of their separate
creditors as it would if it had remained a tenancy by the entirety, so
long as (i) they remain husband and wife, (ii) it continues to be held
in the trust or trusts, and (iii) it continues to be their property.
(2001, c. 718; 2006, c. 281.)
Importantly,
the statute is referenced assuming a man and woman are married.
Therefore, the question arises of whether a same sex couple who gets
married and then purchases property gets this same level of protection.
Careful consultation with a family law attorney and real estate attorney
is important.
