The Obergefell Decision and Property Considerations for Married Same-Sex Couples
In Obergefell v. Hodges, the United States Supreme Court, in a 5-4 opinion, determined that prohibitions on same-sex marriage are an unconstitutional infringement of Fourteenth Amendment rights. This decision throws the doors open for same-sex marriages, affording same-sex married couples the same rights and privileges only enjoyed by opposite-sex couples until recently. This expansion of marriage allows same-sex couples to take advantage of certain legal benefits, and property law is no exception. Same-sex married couples may now hold property in a tenancy by the entirety, a form of title available exclusively to married couples owning together.
Tenancy by the entireties is a rather unique form of title to real property. While a tenancy by the entireties is not an automatic presumption in Kentucky for married couples and must be created using specific language, both spouses in a tenancy by the entireties own the full extent of the property, rather than in a joint tenancy or tenancy in common, where the interest of each is severable during a marriage. This form of estate comes with an automatic right of survivor ship – when one spouse dies, his or her interest ceases to exist, and the surviving spouse retains the full interest in the property. This is useful for a few reasons, not the least of which are avoiding probate, intestate succession or any sort of estate taxes on the property.
In addition to survivorship, tenancy by the entireties provides a unique form of asset protection. Essentially, a creditor of only one spouse cannot attach and execute against the property if the other spouse is a non-debtor. The judgment creditor can, of course, attach and execute against the debtor’s contingent property interest, but that cannot affect the present possessory interest of the non-debtor. If the debtor spouse dies before the non-debtor spouse, the death extinguishes the contingent property interest, and even though the lien is still valid as against any interest owned by the decedent, execution is no longer available to the judgment creditor. The judgment creditor cannot force a sale of the property to satisfy the judgment.
Tenancy by the entireties only affords this asset protection while a couple is married. If they divorce, the estate becomes a tenancy in common, and each former spouse’s interest is then fair game for creditors.
Additionally, same-sex spouses now have dower and curtesy rights to property in Kentucky, meaning that a surviving spouse has an estate equal to one-half of the real property owned by the deceased spouse at the time of death if the spouse died intestate. Of course, a surviving spouse in Kentucky may renounce the will and take the dower and curtesy share as if the deceased spouse died intestate.
 See In re Brumbaugh, 250 B.R. 605, 608 (Bankr. W.D. Ky. 2000).