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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.

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