Bulletin: SLS2015018

Date:
December 10, 2015
To:
All Issuing Offices
RE:
UNDERWRITING - Same-Sex Marriage

Dear Associates:

Supreme Court Decision

The United States Supreme Court held on June 26, 2015, in the case of Obergefell v. Hodges click here that:

  • Same-sex couples have the same right as heterosexual couples to marry in every State of the United States.
  • Same-sex couples have the right to marriage “on the same terms and conditions as opposite sex couples."
  • No State may refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
  • Each State must recognize a lawful same-sex marriage performed in another State before June 26, 2015, as of the date of the lawful marriage.

Prior Same-Sex Marriages

The first State to recognize same-sex marriages was Massachusetts. Its Supreme Court ruled in favor of the right to same-sex marriage, and the first same-sex marriages were conducted on May 17, 2004.

A majority of States granted marriage rights to same-sex couples, either through judicial or legislative processes before June 26, 2015. For a list of the dates on which same-sex marriage became lawful in each state, click here.

Some States also recognize common law (informal) marriage, based on an agreement by a couple to marry. This type of marriage would include same-sex marriage. Assertions of  common law marriage are sometimes disputed by other heirs.

All States are required to recognize prior same-sex marriages lawfully performed in another State as of the date of the marriage, even if not then lawful in the State of the land at that date and even if performed before June 26, 2015. Recognition may include property rights such as homestead rights, requirements for joinder in sales or mortgages, and inheritance or survivor rights.

All States are now required to recognize prior same-sex marriages lawfully performed in another State as of the date of the marriage, even if not then lawful in the State of the land at that date. 

Marital Rights

Married same-sex couples have the same marital rights and are subject to the same requirements as other married couples in your state. 

These rights and requirements may include:

  • Joinder of both spouses in any conveyance, mortgage, or other transfer.
  • Homestead rights, including any protections, survivor's rights, and right to join in any conveyance, mortgage, or other transfer.
  • Rights, if any, of dower, curtesy, or elective share.
  • Rights as tenants by entirety.
  • Community property rights.
  • Rights of inheritance of a surviving spouse.
  • Federal estate tax exemption for surviving spouse (marital deduction). 

These rights apply even if the state law uses terms like “husband,” “wife,” “widow,” or “widower.” 

Judgments and Tenants by the Entirety

We will treat a same-sex married couple the same as a heterosexual married couple with respect to rights as tenants by the entirety.

You may disregard a judgment lien against a tenant by the entirety if the person is in a same-sex marriage, if you would disregard the judgment lien against a person in a heterosexual marriage.

If you are not certain that a heterosexual or same-sex couple is married, make your standard requirement for marital history.

Insuring Marital Status

We do not insure marital status in title policies.

We prefer not to recite marital status in schedule A. 

If requested, we can recite marital status in the Loan Policy.

If you have any questions concerning local customs for the language in vesting deeds, please call our state counsel.

Divorce and Annulment

The laws of divorce and annulment apply to same-sex couples.

Any law terminating a Power of Attorney, Will, or Transfer on Death Deed in favor of a spouse because of subsequent divorce or annulment will apply to a same-sex spouse. 

Reliance on Representations of Marital Status

Where customary, require the parties to the current transaction to state their marital history and status. You may assume that their statement of marital history is correct absent other information.  

Note the date on which same-sex marriage became lawful in each state click here

Do not make special requirements for same-sex couples to prove their marriage was lawfully performed.

Chain of Title

You may rely on starters as allowed by our other bulletins such as SLS2009004 and SLS2011004.

If Stewart Title Guaranty Company issued a policy covering the land, you do not need to address prior known outstanding rights of a same-sex or heterosexual couple. Otherwise, call our underwriting personnel. 

CC&Rs

Discriminatory restrictions, such as those based on race, religion, or sex, violate federal law and are unenforceable.  

Many States and cities also prohibit discrimination in sale of housing based on sexual orientation or gender identity.

If you except to any covenants, conditions, or restrictions that may contain discriminatory restrictions, we prefer to add the following at the end of the exception.

BUT OMITTING AND NOT REPUBLISHING ANY COVENANT, CONDITION, RESTRICTION, OR LIMITATION TO THE EXTENT THAT THE SPECIFIC COVENANT, CONDITION, RESTRICTION, OR LIMITATION VIOLATES STATE OR FEDERAL LAW BASED ON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, GENDER IDENTITY, HANDICAP, FAMILIAL STATUS, OR NATIONAL ORIGIN.

If your state prohibits discrimination against additional classifications, your exception should conform to state law.

Copy of Restrictions

In distributing copies of instruments that may contain restrictions violating applicable anti-discrimination law, some persons will: 

(1)  Leave a blank where the covenant appears and state "This covenant omitted," or 

(2)  Cross out the covenant, or 

(3)  Stamp, type, or print across the covenant or in the margin "This covenant omitted," or 

(4)  Add on the first page of the instrument a stamp that omits any discriminatory covenant.

Civil Unions and Domestic Partnerships

If your transaction involves civil unions or domestic partnerships that are still authorized, please contact our state counsel.

State Bulletins

You should also comply with state bulletins regarding same-sex marriage.

Stewart Policy

Our policy is to treat same-sex couples the same as heterosexual couples, without imposing any special or different requirements.

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

For on-line viewing of this and other bulletins, please log onto www.vuwriter.com.

THIS BULLETIN IS FURNISHED TO INFORM YOU OF CURRENT DEVELOPMENTS. AS A REMINDER, YOU ARE CHARGED WITH KNOWLEDGE OF THE CONTENT ON VIRTUAL UNDERWRITER  AS IT EXISTS FROM TIME TO TIME AS IT APPLIES TO YOU, AS WELL AS ANY OTHER INSTRUCTIONS. OUR UNDERWRITING AGREEMENTS DO NOT AUTHORIZE OUR ISSUING AGENTS TO ENGAGE IN SETTLEMENTS OR CLOSINGS ON BEHALF OF STEWART TITLE GUARANTY COMPANY. THIS BULLETIN IS NOT INTENDED TO DIRECT YOUR ESCROW OR SETTLEMENT PRACTICES OR TO CHANGE PROVISIONS OF APPLICABLE UNDERWRITING AGREEMENTS. CONFIDENTIAL, PROPRIETARY, OR NONPUBLIC PERSONAL INFORMATION SHOULD NEVER BE SHARED OR DISSEMINATED EXCEPT AS ALLOWED BY LAW. IF APPLICABLE STATE LAW OR REGULATION IMPOSES ADDITIONAL REQUIREMENTS, YOU SHOULD CONTINUE TO COMPLY WITH THOSE REQUIREMENTS.