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SAME SEX ISSUES
Issues for Unmarried Couples and Same Sex Couples Unmarried couples and same sex couples have special legal needs. Such couples can do much to protect their rights by using existing legal tools. The following information is not meant to be comprehensive, but addresses some of the most common concerns of unmarried or same sex couples in Pennsylvania.
Real Estate Ownership Before you sign an agreement of sale to buy real estate, it is recommended that you understand the various means by which you can "take title" (own the real estate). Most married couples take title as "tenants by the entireties" which means they each own the whole, and in the event of death the survivor automatically owns the whole without any need for a new deed and without payment of any transfer tax. This option is not available to unmarried or same sex couples. Joint Tenants with Right of Survivorship Unmarried or same sex couples can either take title as "joint tenants with right of survivorship" or as "tenants in common." Taking title as joint tenants with right of survivorship allows for automatic ownership by the survivor in the event of death. Transfer tax would be paid on the ½ interest of the decedent. Many unmarried or same sex couples elect this method of ownership. If both parties are not going to contribute equally to the mortgage, taxes, maintenance, and other expenses of the home, then a cohabitation agreement is highly recommended (see below). Tenants in Common Unmarried or same sex couples can take title as "tenants in common" with 50% - 50% ownership, or with ownership in other percentages, as best suits the individuals' needs and financial circumstances. A cohabitation agreement is highly recommended if the couple elects to own the real estate as "tenants in common." Also, special care must be taken through estate planning to protect the surviving partner.
Cohabitation Agreements Attorneys Roy and Beswick recommend that all unmarried persons buying real estate together consider having a written agreement (cohabitation agreement) signed at or before closing. The agreement would spell out the respective obligations of the parties regarding ownership, maintenance, payment of debts, and most importantly, termination of the tenancy under circumstances other than death. Such an agreement can spare the couple legal fees and the stress involved in litigation between the parties in the event of a break up. Under current law, in order to terminate joint ownership of real estate without agreement of both parties, a partition action would need to be filed in court. If you are interested in an appointment to discuss a cohabitation agreement, please call. Also, it will be helpful if you would complete the following Questionnaire to bring to your appointment: Click here to download the Cohabitation Agreement Questionnaire.
Decision Making Authority - Powers of Attorney The power of attorney is an important document for every person to have, but it is especially important for those in committed relationships. You need a power of attorney if you want your partner/significant other to have the legal authority to:
Without a power of attorney, in the event of the medical emergency or incapacity of your partner, the parents of your life partner, not you, will likely have authority to make medical decisions concerning your partner. Without a power of attorney, the parents or other relatives of your life partner, rather than you, could be named guardian of his/her estate or person in the event of incapacity. This could mean your loss of the right to care for or even to see your life partner. Click here for more information about powers of attorney. Disposition of your Estate The intestate laws of Pennsylvania do not protect unmarried couples. If you want your property to pass to your life partner, then you must prepare a Will or Living Trust. [Click here for more information about Wills.]
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