A gift deed is the route to go when giving rental house to son

The information in this column is not intended as legal advice but to provide a general understanding of the law. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: We are in our 60s, and we want to give our adult son the house he’s renting from us. We own the house free and clear. What do you recommend?

A: You should sign a deed that transfers the house to your son. All you need to do is have a lawyer prepare a gift deed.

The two of you will also need to file gift tax returns to report the gift to the IRS. Most likely, you will not owe gift tax. Your taxable gift will be the fair market value of the home, less the $28,000 the two of you can give him each year without gift tax.

As long as this taxable gift, together with all the other taxable gifts you have made during your lifetimes, is less than $10,860,000, you will not owe any gift tax on the transfer.

Q: My partner and I have lived together for 20 years, but he now has dementia. He owns our home, and I wonder if I could be tossed out of the house in the event of his death. Is there common law marriage for same-sex couples? His will leaves the home to his family.

A: Yes, there is common law marriage for same-sex couples.

At least, I think there is common law marriage for same-sex couples. The recent Supreme Court ruling is so new, however, that there are no statutes or cases in Texas on point. There probably haven’t been many, if any, same-sex partners who have attempted to claim common law marriage in Texas. But you can bet there will be, especially when fact patterns like the one you have described begin to surface.

The problem for you is that your partner is no longer able to sign a Declaration of Informal Marriage. That is a document the two of you could sign to declare that you are common law married.

Since your partner is unable to sign this form, you would need to assert the existence of a common law marriage. That may be hard to do because one of the elements of a common law marriage is that you have held yourselves out as being married. Another element is that the two of you think you are married. It will be hard to prove you have been doing something that never even existed until just a few weeks ago.

If you can successfully claim the existence of a common law marriage, you will be able to live in his home after he dies, even if the home passes to his family.

Depending on how advanced his dementia is, you could possibly still get married, or he could change his will, if he so chooses. You should meet with an attorney to explore all of your options.

Ronald Lipman is an attorney with the Houston law firm of Lipman & Associates. He is board certified in estate planning and probate law by the Texas Board of Legal Specialization. Questions for this column, 50 words or less: Email stateyourcase@ lipmanpc.com