Janet and her lover Denise have found a condominium they would like to buy together. Denise wants to own the property in joint tenancy so that title to the condominium will pass to her if Janet should die. Janet who has a much larger income than Denise will be making the entire down payment but she feels uncomfortable in giving Denise one half of the equity in their new home. They agree they are not ready for a civil union.
Many LGBT couples take title to their homes as "joint tenants with right of survivorship." For the reason of ensuring that title to their home will pass to their surviving lover if one should die. When one joint tenant dies the remaining joint tenant automatically owns the entire property, without the necessity of a will or probate court proceedings.
It is a common misconception that joint tenancy is always the best answer for LGBT couples. The right of survivorship of joint tenant owners can be severed terminated by a joint tenant owner. If that happened the couple would still own the real estate, but as tenants in common. Joint tenancy also doesn't solve the financial problem of the LGBT couple with unequal incomes making unequal contributions for the down payment and who don't split the monthly payments and expenses equally. Joint tenancy cannot reflect the couple's financial agreement to own their home on anything other than a 50/50 basis.
The right of survivorship of joint tenant owners can be protected by using an Illinois land trust to hold legal title to the real estate. In this example, Janet would be the sole beneficiary of the land trust and have the trust agreement provide that upon Janet's death her interest in the home would go to Denise. Until Janet died, Denise would have no interest in the home and could not transfer a part of it to anyone.
If Janet and Denise had contributed equally to the purchase of the condominium the trust agreement could be drafted to provide that Janet and Denise would own the beneficial interest of the land trust as joint tenants with right of survivorship and preclude in the trust agreement the other from making any assignment of the beneficial interest ( transfer of ownership of the property ) without the written consent of both beneficiaries - preserving the joint tenancy.
