Question: If my same sex spouse and I were legally married in another state, but now live in Florida, are we entitled to all homestead protections and benefits?
On April 5, 2016, I posted a blog on Same-Sex Marriage and Florida Real Estate, specifically the impact of the United States Supreme Court 2015 ruling in Obergefell v Hodges. The impact will be far-reaching and it will be a while before Florida Courts rule on the multitude of issues.
Same-sex marriage partners' rights in Florida real estate have undergone substantial change. When the U.S. Supreme Court published its opinion in Obergefell v Hodges back in June of 2015, it significantly impacted not just civil rights, but also people's rights in real property across the country. If you are in the same-sex marriage or even if you were in one and your spouse died, your rights in that house, condominium or even office building may not be significantly different than you thought. For instance, the State of Florida has long recognized that real property held by a man and a woman who are legally married is automatically a "joint tenancy with rights of survivorship," where there is no statement as to how the property is held. This means that if the deed is to "Mary Jones and John Jones" (with nothing more)...and if Mary and John are legally married...then upon the death of one, the entire property automatically vests in the other, without the necessity of probate. On the other hand, if the title is held by unmarried persons or persons whose marriage elsewhere was not recognized by the State of Florida, then the property was automatically held as "tenants in common." That would mean each person's interest would pass under their will or to their heirs at law if there were no will. Obergefell has surely changed that.