nity property. 4 As a result, a creditor could
collect a separate property debt from the
debtor’s half of the property; and one
spouse could sell or encumber his or her
interest, 5 or force the entire property to be
sold by filing a partition action. 6 Also, unlike
community property, only the deceased
spouse’s share was entitled to a “stepped
up” tax basis as of the date of death.
In 1995, the Legislature combined the
aspects of community property and joint
tenancy with right of
survivorship by creating
a new kind of property:
with right of survivorship. 7 Such property
enjoys the same protections and benefits as
but with the additional
survivorship feature. As
a result, the vast majority of married couples
have been advised to
take title in this way for
the past 20 years. 8
A handful of statutes
in Title 33 (Property)
contain the words
Accordingly, same-sex married couples
are now in the same situation as opposite-sex married couples were in 1995. Going
forward, they have an opportunity to
acquire title as community property with
right of survivorship; and they also have
the opportunity to re-title their previously
purchased property merely by executing
and recording a deed to themselves. 10 Also,
they will not need to worry about title companies taking exception for the manner in
which title is held.
There was a concern after 1995 that
married couples might “unknowingly ignore
the chance to select community property
with right of survivorship,” and that couples
who held title another way “may choose, via
inertia, not to make a change.” 11 The same
concern exists today for same-sex married
couples with real estate in Arizona. In fact,
the concern is more acute because same-sex
couples, previously unable to legally marry,
had more limited options when jointly pur-
chasing property. Hopefully inertia will not
prevent them from making a change now
that they have equal rights.
ARI RAMRAS is an attorney whose practice is
dedicated to real estate and business litigation. He
is a Certified Specialist in Real Estate Law (State
Bar of Arizona Board of Legal Specialization), and
has been selected to Best Lawyers in America,
Southwest Super Lawyers, and Arizona’s Finest
Lawyers. He is also the general counsel for
1. As a result of this presumption, if one
spouse is taking title as his or her sole and
separate property, the other will need to sign
a disclaimer deed. See Bell-Kilbourn v. Bell-Kilbourn, 169 P.3d 111, 113 (Ariz. Ct.
2. A.R.S. § 33-452.
3. This benefit is negligible in situations where
an Affidavit of Succession can be recorded
under A.R.S. § 14-3971(E).
4. See James Ratner, Community Property,
Right of Survivorship, and Separate Property
Contributions to Marital Assets: An
Interplay, 41 ARIZ. L. REV. 993, 999-1000,
5. A.R.S. § 33-451; Cooley v. Veiling, 505 P.2d
1381, 1382 (Ariz. Ct. App. 1973) (“The
undivided interest of a joint tenant may be
made the subject of a mortgage by him
without the consent of his co-tenants”).
6. A.R.S. § 12-1211 et. seq.
7. Id. § 33-431.
8. Estate planning may dictate otherwise, and
of course one spouse may simply not wish
to leave property to the other.
9. See United States v. Windsor, 133 S. Ct.
2675, 2683 (2013) (statutory definition of
“spouse” that excluded persons joined in
lawful same-sex marriages unconstitutional);
City of Tucson v. Indus. Comm’n of Arizona,
335 P.3d 1131, 1136 (Ariz. Ct. App. 2014)
(“Although the plain language of a statute
typically controls when it is clear and unambiguous, we will not interpret a statute’s
plain text to engender an absurd or unconstitutional result”).
10. Potential tax and insurance consequences
should be factored into any re-titling
11. Ratner, supra note 4, at 1003.
Real Estate Law BY ARI RAMRAS
Even after same-sex marriage became
legal in Arizona in late 2014, there
remained a number of unanswered questions surrounding real property rights within such marriages. There was still an issue as
to whether Arizona would recognize same-sex marriages from other states, and at least
some title companies were still taking exceptions for the manner in which title was held
by same-sex married couples. Now that the
right of same-sex couples to marry has been
cemented, it is important for such couples to
understand their rights
transactions, as well as
their options regarding
The rights of all
spouses changed significantly in 1995. Prior
to that time, spouses
had the option to hold
title as tenants in common, joint tenants with
right of survivorship,
or community property.
The presumption was,
and is, community
property. 1 The benefits of holding title as
community property are that both spouses
must agree to sell or encumber—i.e., mortgage—the property, and a creditor generally
cannot attach the property to satisfy a separate property debt of one spouse. 2
The benefit of a joint tenancy with right
of survivorship is the avoidance of probate,
because the surviving spouse automatically
inherits the property. 3 However, joint tenancy property held by spouses was treated
the same as joint tenancy property held by
anyone—as separate property, not commu-
are now in the
were in 1995.