Bulletin: MA000006

Dear Associates:

As you may be well aware, as ofMay 17, 2004, same sex marriages have become legal in Massachusetts.  The Supreme Judicial Court in Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003) decided that it was unconstitutional to deny persons of the same sex the right to marry each other, at least where they are residents of the Commonwealth.[1]    There are many ramifications to this decision, but one that is of increasing interest to our agents is the question of how Stewart Title will deal with tenancies by the entirety regarding same-sex couples.  Of course, same-sex couples are free to take title as tenants in common or as joint tenants, but the purpose of this memo is to address the question of their taking title as tenants by the entirety.

The Goodridge court made specific reference to the tenancy by the entirety in its opinion, characterizing it as one of the benefits to those who enter into civil marriage.[2]  This specific reference, in light of the fact that the decision is based on constitutional grounds, seems to lead to the inescapable conclusion that a same-sex couple can hold title under a tenancy by the entirety in the same fashion, and with the same benefits and limitations, as an opposite-sex couple.  Absent future court decisions or legislative enactments that would require a different approach, Stewart Title will underwrite a title in which a tenancy by the entirety occurs between parties of the same sex in the same way it underwrites a title in which such a tenancy occurs between parties of the opposite sex.  What does this mean?

It has always been a basic title insurance industry tenet that the tenancy under which parties take their title should not be mentioned or insured in a title policy.  This position is not new and applies to all situations, regardless of the sex of the individuals or the tenancy under which they elect to take title.

It is important for the agent and practitioner to understand the advantages and disadvantages of holding title under the various tenancies available (tenancy in common, joint tenancy and tenancy by the entirety) and to be prepared to explain the options that are available to their clients.  With specific reference to a tenancy by the entirety (regardless of the sex of the parties), it should be noted that:

A divorce will sever a tenancy by the entirety and transform it to a tenancy in common.

Property held by the parties as tenants by the entirety cannot be the subject of a petition of partition.

A mortgage that is held by two persons as tenants by the entirety cannot be discharged by only one of them.  (This is an exception to rule in G.L. c. 183, §54 that one of two or more joint holders may discharge it.)

Since 1979, a deed to two persons as "tenants by the entirety" who are not married to each other will create a joint tenancy.  (Before that time such a deed would create a tenancy in common.)

With respect to tenancies by the entirety for same-sex married couples, however, it is also appropriate to note that such tenancies may be affected by future legislative or judicial action.

For the moment, Ed Williams, Chief Title Examiner of the Land Court, has recently issued a memorandum providing guidance to the Registry Districts on how to handle the recording of deeds and other documents with same-sex couples noted as holding title as tenants by the entirety and how to deal with certificates of title with respect to that issue.[3]  Essentially, the memorandum allows for the intake of such documents without inquiry behind the recitation of tenancy and discusses how notations on certificates of title will be made.  At the same time, the memorandum cautions that the guidance provided therein "does not preclude subsequent challenge to their right or ability to hold their title as tenants by the entirety, in an appropriate judicial proceeding brought in the Land Court or other court of competent jurisdiction."

Nonetheless, the guidance provided in Ed Williams' memorandum relative to deeds and other documents referring to or creating a tenancy by the entirety would be prudent for real estate practitioners as well, whether registered or unregistered land is involved.  As always, however, please feel free to contact one of the Boston or Springfield underwriters should you run into these issues or other title issues involving same-sex married couples and would like to discuss them further, particularly in the context of a specific transaction or circumstance.[4]