Recently the Kent County Michgan Recorder of Deed refused to
record a deed of a same-sex couple married in another state. The deed was to convey their home to
themselves as tenants by the entirety (a legal entity allowed only for a
married couple).
Because Michigan does not allow or recognize same-sex
marriages, Kent County was correct in not allowing the deed to be recorded, as
is dictated by current law in Michigan.
So what's the big deal?
Tenancy by the entirety exists only if persons are married at the
time the deed is recorded. Any
subsequent marriage will not create a tenancy by the entirety, but will instead
default to tenants-in-common. This is a
key distinction, as there are no rights of survivorship when the property is
held as tenants-in-common (there is also not the asset protection from
creditors available for the home afforded to one spouse under tenancy-by-the-entireties).
So what is a same-sex couple to do if they want rights of
survivorship upon the death of one spouse?
As discussed earlier, even if a county in Michigan did record their deed
as tenants-by-the entireties, it may very well be voided by the court and the
home ownership would default to tenants-in-common. Instead, a same-sex couple can get "joint
tenants with rights of survivorship" simply by recording the deed in that
way. They won't get the home protection
from creditors of one spouse as they would under tenants-by-the-entireties, but
at least the surviving spouse would have full ownership, passing outside of
probate, upon the death of the other spouse.
As we can see the writing on the wall, same-sex marriage
will eventually be allowed in Michigan, as the current Michigan constitutional
prohibition against same-sex marriage will probably fall under the next constitutional
challenge. When that happens, any
married couple can (and should) consider home ownership under tenants-by-the-entireties.
