The Supreme Court’s ruling to legalize same-sex marriage nationwide in 2015 opened homeownership options to the LGBT community that were previously available only to married heterosexual couples. Prior to the court’s decision, gay and lesbian couples in states that didn’t recognize marriage equality could own a home only through a “joint rights of tenancy” or “tenancy in common” agreement, which gives each individual a separate 50 percent stake in the property. Such an agreement makes it difficult for one partner to inherit the other’s share of the home in the case of death. Since the ruling, married LGBT couples can get a loan as one household, making it easier to qualify for a mortgage and enjoy the full benefits of homeownership. Marriage equality stands to boost the homeownership rate among LGBT Americans.
What is the fundamental issue?
Marriage can affect real estate in several ways including how property is titled, tax consequences related to real estate, and estates in the event of death or divorce. Many states allow same sex couples to marry and enjoy the property rights and tax benefits of marriage. The Federal Government has by executive order extended tax benefits to legally married same sex couples. Actions by the Courts have held that restrictions prohibiting same-sex couples from marrying are unconstitutional; however, the issue has not been decided by the Supreme Court. The US Supreme Court has agreed to review several lower court decisions and will likely decide whether states can prohibit same sex marriage.
There may be multiple private property rights issues related to marriage that impact same sex couples and possibly create a difference in treatment on the basis of sexual orientation. In Minnesota, an analysis of state laws benefiting married couples found well over 50 specific real estate related benefits for married couples.
I am a real estate professional. What does this mean for my business?
The rights associated with property ownership and marriage are not available in some states to same sex couples. Real estate professionals working with same sex couples in states not allowing or recognizing same sex marriage, even for those married in another state, will have to be familiar with those differences and be sure to advise same sex couple to seek counsel regarding titling, estate planning and taxes.
NAR supports equal housing opportunity on the basis of sexual orientation and gender identity.
The NAR Diversity Committee identified several possible areas where real estate benefits are not available to same sex couples because they are not allowed to marry in their state. The Committee asked for the input of the Federal Financing and Housing Policy Committee, the Convention Financing and Policy Committee, the Federal Taxation Committee and the State and Local Issues Policy Committee. Research regarding state laws identified several issues impacting same sex couples not allowed to marry, including the application of transfer taxes when one member of a couple dies, the ability to title property, and protection from discrimination. The committees mentioned above, plus the Public Policy Coordinating Committee, have requested to be part of future discussions to address the development of NAR policy on the issue. Discussion will be postponed until after the US Supreme Court determines whether restrictions preventing same sex marriage are constitutional.