Q: I'm a woman, married and living with my wife. We earn similar salaries and have joint bank accounts, and we're now saving to purchase a home. I've heard that we might have to pay a gift tax if we both contribute to the down payment, even if we're pulling the money from a joint account. Is that true? Is there anything special we should do to protect ourselves financially with homeownership, as two women?
Though some states recognize same-sex marriage—Massachusetts has been on board since 2004, and New York legalized it this summer—in the eyes of the federal tax system, you are still individuals. In effect, your situation is no different than any two people, straight or gay, who choose to buy a home together. Definitely sit down with an estate lawyer with experience in this area.
The good news is that the down payment won't be subject to gift tax, given that you both contribute to your savings and the payments will be made from a joint account. The biggest issue is the type of ownership on the deed. There are three basic types: Tenants-in-Common, Joint Tenants with Right of Survivorship (JTWROS), or having a revocable living trust take ownership.
Tenants-in-Common means that you have a share in the home and can do what you like with that share. So, let's say your wife leaves everything to a nephew in her will. If she dies, he now owns her stake in the house. If he wants to sell it, you need to buy him out, or you could be forced to sell the home. I'm guessing that's not what either of you wants. JTWROS solves that problem. With this setup, when one of you dies, the property passes directly to the survivor.
If you want something more customizable, set up a trust. It allows you to maintain control over the asset while you're alive and to specify exactly what happens when you die. For instance, you could let your wife live in the house as long as she likes but once she moves give a portion of the proceeds to someone else. The important thing is to weigh these ownership options and choose one that feels right for the two of you.
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