Death; Co-habiting same-sex Couples; Estate Planning and Probate

William Sweeney

As with heterosexual relationships, breakup or death are the two possible endings for co-habiting same-sex couples. In the event of death, the rights of the survivor is a significant issue, especially with unmarried co-habiting same-sex couples. Many of these married or unmarried same-sex couples have no joint ownership interests in real property and no proper estate planning, such as a Will or a Revocable Living Trust.

An alternative method for avoiding probate would be for the parties to have a living trust and to deed the property to the trustee(s) of the living trust to be transferred pursuant to the provisions of the living trust. Partners in a same-sex relationship, should consult with an estate planning attorney, just as same-sex couples to consider whether to create a living trust. Absent a living trust, properties for which title is not held in joint tenancy or community property with a right of survivorship would have to be probated on the death of the same-sex partner.

Even if there is co-ownership, the manner in which property is held affects the outcome just as it does with opposite-sex couples.

Key Attributes Of Real Property Ownership By Same-Sex Couples

The key attributes of each type of real property ownership by multiple persons, including same-sex couples, are as follows:

  • [a] Interests in common (also commonly referred to as tenancy in common) are created by default when several persons acquire the property, but not expressly in joint interest such as community property with right of survivorship. The parties may own unequal shares, which should be set forth in the deed. However, be aware that in this method of ownership the property interest will need to be probated utilizing the various methods under California law, depending on the appraised Fair Market Value at the date of death.

  • [b] Joint interests (also commonly called joint tenancies) are owned by two or more people in undivided equal shares and are created by a single will or transfer when expressly declared as joint tenants. The primary characteristics of joint tenancy are that the property must be held in equal shares and there is a right of survivorship. When one joint tenant dies, the entire estate automatically belongs to the surviving joint tenant(s) by operation of law. Since, upon death of a joint tenant, the deceased joint tenant’s interest in the property automatically passes to the other joint tenant(s), that interest is not a part of the deceased joint tenant’s estate, and cannot be disposed of by will or probate. The only exceptions to this rule are the simultaneous death of all joint tenants or the murder of one joint tenant by another.

  • [c] Community interests (also commonly called community property) apply to property acquired after marriage or after becoming a registered domestic partnership. (For domestic partnerships see California Family Code §297, et seq.) Community property provides for equal ownership interests between spouses, including married same-sex couples, or domestic partners (absent a community property agreement to the contrary) but does not have a right of survivorship. Remember, without proper estate planning any community property ownership on the death of a spouse, including married same-sex spouse, or registered domestic partner dies, will be subject to probate.

  • [d] In 2001, the California legislature created a subtype of community property interest, known as "community property with right of survivorship" that is similar to a joint tenancy, but requires that the joint tenants be married or be registered domestic partners. Community property with right of survivorship must be expressly stated in the deed. It creates the right of survivorship afforded in a joint tenancy to the community property. However, the creditors of the deceased spouse/registered domestic partner have rights against the deceased’s interest, just as they would in a normal community property situation (whereas they would not in a joint tenancy). There may also be tax advantages afforded by a community property with right of survivorship interest as opposed to a joint tenancy for which clients should consult their tax attorneys, CPAs or tax advisors.

Domestic Partnership

The California Domestic Partner Rights and Responsibility Act of 2003, effective January 1, 2005, resulted in extending the community property interest so that registered domestic partners after that date can have a community property interest in the common residence, among other property.

Marvin V. Marvin

The number of couples choosing to live together without marriage has increased significantly in recent years. In Marvin v. Marvin (1976) 18 Cal.3d 660, the California Supreme Court redefined the rights of persons living in nonmarital cohabitation to property acquired during their relationship.

Marvin v. Marvin leaves open the possibility for the Court to find that an express agreement exists between co-habitants which is enforceable except to the extent the contract is explicitly founded on the consideration of meretricious sexual services.

While a discussion of Marvin and subsequent cases is beyond the scope of this article, one method for avoiding disputes, in addition to carefully choosing the manner in which title is held or a living trust, would be to have a clear co-ownership agreement between the parties which addresses ownership, capital contributions, contributions for on-going maintenance, improvements, mortgage, taxes, insurance, and other property related expenses, and any division of proceeds from the property in the event the relationship ends or the property is sold. Alternatively, joint ownership should be considered.


If you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, others spread across the state and interested parties outside California.

To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.

Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.

Copyright © 2017, William K. Sweeney, Attorney at Law. All rights reserved.