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How to Hold Title as an LGBTQ+ Couple: Vesting Guide
How you hold title ("vesting") decides what happens if a partner dies or you split. Joint tenancy with right of survivorship: a deceased partner's share passes automatically to the survivor, avoiding probate. Tenants in common: allows unequal shares but the share goes to heirs (needs a will). Married couples may use tenancy by the entirety or community property (stepped-up basis tax benefit). Classic mistake: tenants in common with no will. Own Luxury Homes® 12-Point Agent Integrity Audit™ — title that protects you.
How to Hold Title as an LGBTQ+ Couple: The Vesting Decision That Determines Survivorship and Inheritance
The direct answer: How you hold title (called "vesting") determines what happens to the home if a partner dies or you split. The main options: joint tenancy with right of survivorship (a deceased partner’s share passes automatically to the survivor, avoiding probate), tenants in common (allows unequal shares, but a deceased partner’s share goes to their heirs), and — for married couples in some states — tenancy by the entirety or community property (which can carry valuable tax and survivorship benefits). For unmarried couples especially, this is one of the most consequential decisions you’ll make.
The Vesting Options Compared
| Vesting Type | Survivorship? | Unequal Shares? | Best For | ||||||
|---|---|---|---|---|---|---|---|---|---|
| Joint tenancy w/ right of survivorship | Yes — automatic, avoids probate | No (equal shares) | Committed couples wanting the survivor to keep the home | ||||||
| Tenants in common | No — share goes to heirs/will | Yes (e.g., 80/20) | Unequal contributions; wanting control over your share’s inheritance | ||||||
| Tenancy by the entirety | Yes | No | Married couples (where state offers it); adds creditor protection | ||||||
| Community property w/ survivorship | Yes | Per state rules | Married couples in community property states (stepped-up basis benefit) | ||||||
| Sole ownership | N/A (one owner) | N/A | One partner owns; risky for the non-owner unless other protections exist | ||||||
| Available vesting types and their exact effects vary by state. Tenancy by the entirety and community property options generally require marriage (or, in some states, registered domestic partnership). This is educational information, not legal or tax advice — consult a real estate attorney and tax professional in your state before choosing how to vest. | |||||||||
The Cautionary Tale Every Couple Should Hear
Estate attorneys tell a version of this story repeatedly: a long-term couple owned a property together for decades, but it was never titled with right of survivorship. When the partner whose name was on the deed died, the property passed through their estate to an estranged relative — depriving the surviving partner of both the home and any income from it. This is exactly the outcome that proper vesting prevents. For unmarried couples, holding title as joint tenants with right of survivorship (or as tenants in common WITH a will directing your share to your partner) is what keeps the home with the person you intend. The deed is not a formality — it is the legal instrument that decides who keeps your home.
How to Choose Your Vesting
Ask these questions: Do you want the survivor to automatically keep the home? If yes, joint tenancy with right of survivorship (or tenancy by the entirety if married). Are your financial contributions unequal, and do you each want to control your share’s inheritance? If yes, tenants in common — with wills and ideally a cohabitation agreement. Are you married and in a community property state? Explore community property with right of survivorship for the stepped-up-basis tax benefit. Whatever you choose, pair it with the estate documents that back it up. And never decide vesting at the closing table under time pressure — decide it deliberately, in advance, ideally with an attorney’s input.
“"What’s the difference between joint tenancy and tenants in common? The title company asked and we had no idea." This is the question I never want a couple answering for the first time at the closing table. Here’s the plain-English version. Joint tenancy with right of survivorship: you own it equally, and if one of you passes, the other automatically owns the whole thing — no probate, no question. That’s what most committed couples want. Tenants in common: you can own unequal shares — say one of you put in more — but if one passes, that share goes to whoever their will names, not automatically to the partner. So if you go that route, you each need a will. If you’re married and in a community property state, there’s a third option that can save real money in capital gains tax down the road. I always have couples decide this before closing, with an attorney if there’s any complexity. The deed decides who keeps your home. That’s not a box to check in a rush — it’s one of the most important decisions in the whole purchase.”
— Ryan Brown, Principal Broker & CEO, Own Luxury Homes®
How should an LGBTQ+ couple hold title to a home?
How you hold title ("vesting") determines what happens if a partner dies or you split. Main options: Joint tenancy with right of survivorship — equal shares; a deceased partner’s interest passes automatically to the survivor, avoiding probate (best for committed couples wanting the survivor to keep the home). Tenants in common — allows unequal shares; but a deceased partner’s share goes to their heirs via will, not automatically to the partner (so you need a will). Tenancy by the entirety — a married-couple option in some states, adding creditor protection. Community property with right of survivorship — for married couples in the nine community property states, offering a valuable stepped-up cost basis. For unmarried couples, this is one of the most consequential decisions: tenants in common without a will is the classic mistake that has left surviving partners without their home. Decide vesting deliberately in advance, not at closing, and consult a real estate attorney and tax professional.
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— Ryan Brown, Principal Broker & CEO, Own Luxury Homes® (FL License BK3626873)