Pennsylvania’s Legalization of Same-Sex Marriage and How It Affects Title to Real Estate
On May 24, 2014, Pennsylvania became the 19th state to legalize same-sex marriage under the U.S. District Court for the Middle District of Pennsylvania’s ruling in Whitewood v. Wolf. The opinion declares that “same-sex couples seeking to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the Commonwealth.”
Accordingly, this decision affords equal application of all laws relating to marriage, married spouses or their children to both same-gender or different-gender married spouses and their children in the Commonwealth of Pennsylvania. Effective immediately, same-sex couples who marry in Pennsylvania as well same-sex couples legally married in other jurisdictions will have all of the same rights, benefits, protections and responsibilities as do any married persons under Pennsylvania law.
In Pennsylvania, absent intent otherwise specified, a conveyance, release or sale of land to a husband and wife creates an estate by the entirety, and no joint tenancy or tenancy in common. See In re Burns Estate, 40 D. & C.2d 64 (1996). The preferred nomenclature for both opposite-sex and same-sex couples would be acknowledgment that the individuals are married to one another and are taking title “as tenants by the entirety.” It is not necessary to identify the couple as “same sex.” Same-sex couples who were or are married in other states and nations that permit same-sex marriage are now considered married in Pennsylvania.
A tenancy by the entirety can be created only by married persons who own property together as a single legal entity. A joint tenancy is not automatically converted by a change in marital status, so the couple must record a new deed to themselves converting their ownership to a tenancy by the entirety. Same-sex couples who enter into marriage where one spouse holds title to real estate do not automatically take joint title to such property; the real estate owning spouses must convey the property to both members of the couple, the same as for opposite-sex couples.
For reference, the full text of the Middle District case may be found here.