On May 20, 2014 the Federal District Court for the Middle District of Pennsylvania decided the case Deb Whitewood, et al., v. Michael Wolf, in his official capacity as Secretary, Pennsylvania Department of Health, et al. (1:13-cv-01861), and the decision overturned Pennsylvania’s ban on same-sex marriage. Judge John H. Jones held that two statutes (limiting marriage to one man and one woman, and prohibiting recognition of other states’ same-sex unions) were unconstitutional, as they violate both the Due Process and Equal Protection clauses of the Fourteenth Amendment. Governor Corbett has announced that the state will not appeal the ruling.
As of that date, same sex couples, if lawfully married in Pennsylvania or elsewhere will be legally entitled to all rights, benefits and privileges of marriage as previously defined in Pennsylvania.
At this time, it is unclear as to whether Pennsylvania will recognize “civil unions” or “domestic partnerships” entered into in other states (or countries), as valid “marriages” in PA, as these arrangements are not recognized by the federal government, and carry far fewer protections and rights as “marriage.” As of this writing, only Nevada and Colorado have civil union statutes.
The parties will be legally married in every respect and this will have an impact on Underwriting in areas of Divorce and Equitable Distribution, Judgments, Bankruptcy, Estate Issues, Inheritance and Federal Estate Tax and Tenancy on a Deed to state a few examples. As a practical matter, same-sex couples should be treated exactly like opposite-sex couples in your transactions. Don’t forget transfer tax exemptions, marital waivers/subordinations, and all other issues attendant to married couples.
A PA Title Company will consider deeds already of record for same sex couples as not having the marital protection afforded married parties prior to the date of the decision. When crafting a deed for a married same sex couple a PA Title Company will state grantee, married or a married couple as Tenants by Entireties, or TBE, but, as always, it is up to the couple as to the exact wording on the deed. As a PA Title Company writing PA Title Insurance preparing deeds for a newly-married couple (of whatever genders) is not a problem at all and since we have PA counsel on staff we can take care of whether in conjunction with PA Title Insurance or just as an accommodation.
Should you have any questions as to the content of the Underwriting Directive or any PA Title Insurance matters, please contact us at any time.