Real Estate Conveyance Involving Same-Sex Marriage

As of today, there are currently only 19 States (plus Washington, D.C.) which recognize same-sex marriage, as follows:

Court Decision	State Legislature	Popular Vote
California (06/28/13) Connecticut (11/12/08) Iowa (04/24/09) Massachusetts (05/17/04) New Jersey (10/21/13) New Mexico (12/19/13) Oregon (05/19/14) Pennsylvania (05/20/14)	Delaware (07/01/13) Hawaii (12/02/13) Illinois (06/01/14) Minnesota (08/01/13) New Hampshire (01/01/10) New York (07/24/11) Rhode Island (08/01/13) Vermont (09/01/09) Washington, D.C. (12/18/09)	Maine (12/29/12) Maryland (01/01/13) Washington (12/09/12)

There are a  number of law suits challenging state bans on same-sex marriage that are working their way through the courts in all the remaining states (except North Dakota). In addition, thousands of same-sex couples were married during brief periods of time when it was allowed in some states before an appeal was filed and/or a stay was granted, leaving those persons in a state of limbo. Despite the full faith and credit clause of the U.S. constitution, recognition in one state has not translated to recognition in all other states. As such, this matter is very likely to go to the U.S. Supreme Court for the next term.

Any conveyance of property to/from same-sex couples in states that do not recognize such marriages at the time of the conveyance could present a challenge (and a title nightmare). Traditionally, deeds to/from married couples (of opposite sex) were often written to include "husband and wife" or "tenants by the entireties" after the names of the parties. Such language ensured that ownership and succession of title would remain with a surviving spouse. With the evolution of marriage in some states to include same-sex couples while still being unrecognized in others, care must be taken with the language on deeds of conveyance both to ensure survivorship upon the death of one party, but also to reduce potential problems with a subsequent transfer of the property if the same-sex couple wishes to dispose of it.

For states in which same-sex marriages are recognized, "tenants by the entireties" may be the most accurate language, although rather formal and perhaps not well understood by non-attorneys or real estate professionals. Another option might be "a married couple." However, for states in which same-sex marriages are not recognized, such language may have no legal effect, meaning the couple would own the property as joint tenants (two individuals instead of one married couple). Title held in such a manner means that each person owns 50% of the property and upon the death of one party, his/her interest will be conveyed pursuant to his/her will or the intestacy statutes of the state in which the property is located. That means the heir(s) of the decedent could take ownership jointly with a surviving owner. It could also present a challenge when trying to transfer the property. To help prevent any subsequent transfer problems and to ensure that a surviving spouse in a same-sex marriage takes ownership of the property, I recommend that title be conveyed in non-recognition states as "joint tenants with right of survivorship." If the relevant state later recognizes same-sex marriages, the couple may choose to deed the property to themselves as "a married couple", "tenants by the entireties", or whatever nomenclature is prevalent in that jurisdiction.

Florida Power of Attorney

Effective October 1, 2011, the Florida legislature revised the Florida Power of Attorney Act (the "Act") which eliminated “springing” POAs and changed some of the requirements in order to authorize an agent to act on behalf of a principal.

Definition

A power of attorney (POA) is a legal document which delegates authority of one person (the principal) to another (the agent/attorney-in-fact). A POA can be durable (not terminated by the later incapacity of the principal) or nondurable (terminated by the later incapacity of the principal). A POA not designated as “durable” will be considered nondurable. As such, language should be included to indicate the later disability or incapacity of the principal or the lapse of time shall not affect the validity of the powers granted to the agent. 

Requirements

A Power of Attorney must be: (i) signed by a principal; (ii) with two subscribing witnesses; and (iii) before a notary public. The principle must sign or initial next to specific clauses in the document before an agent may exercise certain powers. It is no longer sufficient for a principal to just sign at the end of a list of powers in the document. However, general references (such as “my agent has authority to conduct banking transactions”) will bestow broad powers on an agent as it is no longer necessary to separately itemize each of the banking transactions which an agent can now perform.  

Qualifications, Actions, and Resignation

An agent must be (i) a natural person 18 years of age or older, or (ii) a financial institution that has trust powers, maintains a place of business in Florida, and is authorized to conduct trust business in Florida. A principal may designate one or more agents and each agent now has full authority to act independently. An agent may select only certain powers designated to them. Resignation can be affected by notice to the principal, the principal’s guardian, or a successor agent.

Estate Planning

An agent’s authority regarding a revocable trust must be specifically enumerated and may be exercised by an agent only if (i) the principal signs or initials next to the specific enumerated power, (ii) the authority to exercise is consistent with the agent’s duties, and (iii) the exercise is not otherwise prohibited.

Authority

A photocopy, electronic copy, or original power of attorney will now be honored by financial institutions. An attorney-in-fact may initial litigation to contest a third party’s refusal to honor the POA. The acceptance of copies may create situations where the principal has revoked the agent’s authority, but the agent may present a copy of the POA and continue to act on behalf of the principal without his knowledge or consent. Therefore, the principal should notify others when a POA has been revoked. Death of the principal extinguishing any existing POA.

Pre-October 2011 POAs

POAs often were drafted to become effective upon the occurrence of an event such as the disability or incapacity of the principal (i.e., springing POA). The Act eliminated such springing authority and now POAs are effective immediately upon signing. POAs executed prior to October 1, 2011, may or may not still be valid. A qualified attorney can review the POA to determine the extent of its enforceability, and whether the document should be updated to comply with the latest requirements of Florida law.

A Power of Attorney can be a useful tool by allowing another to handle matters for you. Bear in mind, however, that this document grants very broad powers to the agent and care should be taken to designate a reliable, responsible person as your agent.

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Tim Martin is the owner/attorney of Martin Law Office, P.A., a solo practitioner law firm in the Tampa Bay area of Florida. Martin Law focuses on animal law, business law, estate planning/probate, LGBT issues, and real property.

Martin Law Office, P.A.

10200 Gandy Blvd. N. #1014

St. Petersburg, FL 33702

Tel: 813-260-1413

Fax: 888-250-6501

Email: timm@martinlawfl.com

www.martinlawfl.com