As with heterosexual relationships, breakup or death are the two possible endings for homosexual relationships. The manner in which property is held affects the outcome of co-owned property between same-sex couples, just as it does with opposite-sex couples.

Manner of Holding Title Or Ownership By Multiple Parties

Since 1872, California law has defined four types of ownership interests in real property by multiple persons: 1) joint interests; 2) partnership interests; 3) interests in common; and 4) community interests of married couples.

The California Domestic Partner Rights and Responsibility Act of 2003, effective January 1, 2005, resulted in extending the community property interest so that registered domestic partners after that date can also have a community property interest in the common residence, among other property. The key attributes of each type of real property ownership by multiple persons are further defined by other Civil Code provisions as follows:

1. Interests in common (also commonly referred to as tenancy in common) are created by default when several persons acquire the property, but not expressly in joint interest such as community property or in partnership. The parties may own unequal shares, which should be set forth in the deed.
2. Joint interests (also commonly called joint tenancies) are owned by two or more people in undivided equal shares and are created by a single will or transfer when expressly declared as joint tenants. The primary characteristics of joint tenancy are that the property must be held in equal shares and there is a right of survivorship. When one joint tenant dies, the entire estate automatically belongs to the surviving joint tenant(s) by operation of law. Since, upon death of a joint tenant, the deceased joint tenant’s interest in the property automatically passes to the other joint tenant(s), that interest is not a part of the deceased joint tenant’s estate, and cannot be disposed of by will or probate. The only exceptions to this rule are the simultaneous death of all joint tenants or the murder of one joint tenant by another.
3. Community interests (also commonly called community property) apply to property acquired after marriage or after becoming a registered domestic partnership. (For domestic partnerships see California Family Code §297, et seq.)  Community property provides for equal ownership interests between the spouses or domestic partners (absent a community property agreement to the contrary) but does nothave a right of survivorship. Any community property, at the time a spouse or registered domestic partner dies, would be subject to probate.

In 2001, the California legislature created a subtype of community property interest, known as “community property with right of survivorship” that is similar to a joint tenancy, but requires that the joint tenants be married or be registered domestic partners. Community property with right of survivorship must be expressly stated in the deed. It creates the right of survivorship afforded in a joint tenancy to the community property. However, the creditors of the deceased spouse/registered domestic partner have rights against the deceased’s interest, just as they would in a normal community property situation (whereas they would not in a joint tenancy). There may also be tax advantages afforded by a community property with right of survivorship interest as opposed to a joint tenancy for which clients should consult their tax attorneys, CPAs or tax advisors.

If a married couple or a registered domestic partnership wishes to have the property that was acquired during the marriage or domestic partnership be in the sole ownership of one of the individuals, the title company will typically require the non-owning member of the couple to relinquish his or her rights to the property such as by signing and recording a quit claim deed.

Both married couples and registered domestic partnerships have an array of rights and responsibilities concerning community property (including real property acquired during the marriage or registered domestic partnership) during the period of ownership of the property and at death or dissolution of the marriage or registered domestic partnership. Such rights include the right of management and control of community property, a community property interest on dissolution of the relationship, or an interest in the community property of the decedent’s estate.

Avoiding Probate for Same Sex Couples in California Without a Living Trust

Probate means that there is a court case that deals with:

• Transferring the property of someone who has died to the heirs or beneficiaries;
• Deciding if a will is valid; and
• Taking care of the financial responsibilities of the person who died.

In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.

As discussed above, there are two methods for avoiding probate in California without a living trust that is properly funded:  joint tenancies and community property with rights of survivorship. In order to be able to create a community property with rights of survivorship interest, the parties must be married or in a registered domestic partnership. Both of these types of interest allow one party’s interest to pass to another party and any property owned in such an interest would not be subject to probate. However, both of these types of interest require that the deed expressly declare either the joint tenancy interest or the interest as community property with a right of survivorship. Accordingly, a deed that did not expressly contain such language would create a tenancy in common. Such a deed would require that the property be probated on the death of one of the title holders.

An alternative method for avoiding probate would be for the parties to have a living trust and to deed the property to the trustee(s) of the living trust to be transferred pursuant to the provisions of the living trust. Partners in a same-sex relationship, who own property together, should consult with an estate planning attorney, just as same-sex couples who own property together should do so to consider whether to create a living trust. Properties for which title is not held in joint tenancy or community property with a right of survivorship would have to be probated on one of the death of one of the parties, absent a living trust.

California Does Not Recognize Common Law Marriage

California does not recognize Common Law Marriage or any equivalent for domestic partners, but there are other bases under which a person can claim to have acquired an interest in the real property that was owned by his or her partner before the relationship began or was acquired by the other individual in the relationship.

These include such things as making contributions towards the mortgage, maintenance costs, or improvements, jointly pooling earnings and accounts to pay common expenses, and performing services for the other individual in the relationship or which improve the property. These factors can have a significant role where title is held in tenancy in common.

Marvin v. Marvin (1976) 18 Cal. 3d 690 also leaves open the possibility for the Court to find that an express agreement exists between co-habitants which is enforceable except to the extent the contract is explicitly founded on the consideration of meretricious sexual services. The Court further held that in the absence of an express contract, the Court could inquire into the conduct of the parties to determine whether the conduct of the parties demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties.

While a discussion of Marvin and subsequent cases is beyond the scope of this article, one method for avoiding disputes, in addition to carefully choosing the manner in which title is held, would be to have a clear co-ownership agreement between the parties which addresses ownership, capital contributions, contributions for on-going maintenance,  improvements, mortgage, taxes, insurance, and other property related expenses, and any division of proceeds from the property in the event the relationship ends or the property is sold.

Conclusion

If you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, others spread across the state and interested parties outside California.

To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype or through my online contact form.

Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.

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