Asked and AnsweredWhen a gay couple buys the shares of a cooperative or buys a condominium apartment, what is the best way to hold title?
There are several ways in which an unmarried couple can take title to an apartment. Couples can choose to take title as “joint tenants, with right of survivorship”. When this form of title is used, the interest of one partner transfers to the other partner upon death, by operation of law. On the other hand, if the couple takes title as “tenants in common”, when one party dies, the interest of the deceased party transfers through that party’s will and may or may not be transferred to surviving partner. As this decision has significant legal and tax ramifications, how title is to be held should be reviewed with the couple’s attorney and financial advisor to make sure that the best decision is being made for the particular situation. As in any divorce, when a gay couple owns an apartment together and there is a breakup, things get considerably more complicated. As the domestic relations law does not address the break up of unmarried couples, a domestic dispute that arises over title to an apartment after the parties separate can be costly. Although not exactly a romantic document, parties can consider entering into an occupancy agreement that provides for the sharing of expenses and rights of the parties if one person wants to sell or if the parties terminate the relationship. Discussing these issues at the time the apartment is purchased can go a long way to avoiding a great deal of grief if parties separate and real estate holdings must be divided up. At the moment, even if a gay couple are parties to a civil union recognized in another state, the couple will not be able to take title as “tenants by the entirety in New York, which is a statutorily available only to a husband and wife.