Buying a home with a partner: Legal considerations for unmarried co-buyers

Written by Samantha SheltonNMLS 1647301Updated October 2026

Unmarried couple talking through legal considerations at a kitchen table before buying a home with a partner

When you buy a home with a partner you’re not married to, the two decisions that matter most are how you hold title, joint tenancy with rights of survivorship or tenancy in common, and whether you put a written co-ownership agreement in place. Joint tenancy gives each partner an equal share that passes automatically to the survivor; tenancy in common allows unequal shares (say 70/30 to match unequal down payments) that each owner can will to their own heirs.

Unlike married couples, unmarried co-buyers get no default legal protections if they split, so a written agreement covering contributions, expenses, and exit terms is essential. Learn more about the legal considerations of buying a home with a partner, including how to hold title, what belongs in a co-ownership agreement, and who is really liable for the mortgage.

Key takeaways:

Title decides who inherits: Joint tenancy with rights of survivorship means equal shares that pass automatically to the surviving partner, while tenancy in common permits unequal shares each owner can leave to their own heirs.
Get it in writing before closing: A written co-ownership or cohabitation agreement is the single most important protection for unmarried buyers, spelling out contributions, monthly cost splits, and what happens in a breakup.
Each borrower owes 100%: Both names on the mortgage means both are fully liable for the entire payment, so lenders, and your agreement, should reflect what happens if one partner stops paying or wants out.

How should unmarried partners hold title?

Unmarried co-buyers choose between two forms of joint ownership: joint tenancy with rights of survivorship, which splits the home into equal shares that pass automatically to the survivor, and tenancy in common, which allows any split you record, 50/50, 70/30, or 90/10. It’s decided in one line of wording on the deed at closing, and changing it later means recording a new deed.

First, separate two documents people confuse. The deed says who owns the property; the mortgage says who owes the debt, and they can name different people. Co-buying is one of the home buying situations where that distinction matters most, on top of our home buying guide.

What is joint tenancy with rights of survivorship?

Joint tenancy with rights of survivorship is a form of co-ownership that gives each partner an equal share of the home, with that share passing automatically to the surviving owner when one of them dies. The transfer happens outside probate and overrides whatever your will says about the property.

Shares are equal: Two joint tenants each own an undivided one-half interest regardless of who paid more. A 90/10 down payment split doesn’t create a 90/10 ownership split.
Your will loses: You can’t leave a joint tenancy share to a child, a sibling, or a trust; survivorship happens first, and the survivor clears title with a death certificate.
Severance rules vary: In many states one joint tenant can convert the ownership to a tenancy in common by deeding away their interest, while Michigan deeds are often drafted so survivorship can’t be broken that way.

What is tenancy in common?

Tenancy in common is a form of co-ownership in which each partner holds a separate, transferable share, equal or unequal, that they can sell or leave to their own heirs rather than to the other owner. It is the default in most states when two unmarried people take title without survivorship wording on the deed.

No automatic survivorship: A deceased owner’s share passes under their will, or under state intestacy law if there isn’t one.
Shares are transferable: A tenant in common can generally sell, gift, or borrow against their own share without the other owner’s signature, which is why your agreement needs a right of first refusal.
Partition is always available: Any co-owner can ask a court to order a partition, a division or forced sale, but it’s slow, public, and expensive next to a buyout clause you wrote yourselves.

Joint tenancy vs. tenancy in common at a glance

Feature	Joint tenancy with rights of survivorship	Tenancy in common
Ownership shares	Equal by definition (50/50 with two owners)	Any split you record (50/50, 70/30, 90/10)
When one owner dies	Share passes automatically to the survivor	Share passes to that owner’s heirs or estate
Probate on the home	Generally avoided	Generally required for the deceased owner’s share
Can you will your share?	No. Survivorship overrides your will	Yes to anyone you name
Best for	Partners contributing equally who want the survivor to keep the home	Partners contributing unequally, or with children from a prior relationship

What about tenancy by the entirety?

Tenancy by the entirety is available only to married couples. In Michigan and roughly half the states it treats spouses as one owner: neither can sell or encumber the home without the other, and a creditor of only one spouse generally can’t lien it. Unmarried buyers get none of that by default. Confirm your deed language with the closing agent, and know what your title insurance policy covers for each of you, the American Land Title Association publishes the standard forms.

What your co-ownership agreement must cover

A co-ownership agreement is a private contract between the two of you, and a usable one answers nine questions before you sign a purchase agreement. Some attorneys fold these terms into a broader cohabitation agreement; either works if the house terms are specific and signed.

Ownership percentages: State each partner’s exact share as a number, and record the deed to match. A side letter that contradicts the deed invites the fight you’re preventing.
Initial contributions: List the earnest money, down payment, and closing costs each of you paid, with dates. This record decides who gets what at sale.
Monthly cost splits: Spell out how the mortgage, taxes, insurance, HOA dues, and utilities get divided, and whether that changes if one income does.
Repairs and improvements: Set a dollar threshold above which both signatures are required, and say whether an improvement one partner funds alone raises their percentage.
What happens if one partner can’t pay: Give a cure period, then say what the covering partner gets, a documented loan, or added equity credited at sale. Silence here starts most disputes.
The buyout right: Name who has first option, how value is set (one licensed appraiser, or the average of two), and how many days to close. A buyout almost always requires a refinance.
Forced sale terms: If neither partner buys the other out in that window, set a deadline that triggers a listing and split net proceeds by recorded share.
Dispute resolution: Require mediation before either of you can file suit, and add binding arbitration if you’d rather stay out of court.
Death and estate documents: Say what happens to each share, back it with actual wills, and consider a small term life policy sized to fund a buyout.

Nolo’s legal guide to buying with a partner walks the same clause list, and the tradeoffs mirror the pros and cons of co-buying with friends. The relationship differs, the paperwork problem doesn’t.

Who is legally liable for the mortgage?

Every borrower who signs the note is liable for 100% of the payment, not half. If your partner stops contributing, the lender’s position is that you owe the full amount, and a late payment lands on both credit reports at once.

That liability outlives the relationship. A quitclaim deed can remove a partner from title in an afternoon, but it does nothing to the loan. A name comes off the mortgage only through a refinance, a sale, or a lender-approved release of liability, rare on residential loans. Plan the exit financing when you plan the exit terms, under the same co-buying rules that apply to family and friends.

Should both partners be on the loan?

Not always, and credit is usually the deciding factor. On a conventional loan with two borrowers, the lender takes each borrower’s representative score, the middle of three, or the lower of two, then uses the lowest score among all borrowers as the loan’s representative score for pricing, under Fannie Mae’s Selling Guide section B3-5.1-02. A 780 partner and a 640 partner produce a 640 loan.

Both on the loan: Both incomes count toward qualifying, which usually buys more house, and the weaker score sets pricing for both of you.
One on the loan, both on title: The stronger profile prices the loan and the other partner still owns the home. Expect the lender to have the non-borrowing owner sign the mortgage so the lien covers the whole property. That isn’t the same as owing the debt.
The tradeoff: Leaving a partner off the loan also leaves their income out of qualifying. Sometimes better pricing beats a bigger loan amount, and sometimes it doesn’t.

Because Align is a broker, we can price both structures at once across competing wholesale lenders. Start early: preparing to buy as a couple means each of you knows your own score and debts first.

How to document unequal down payments

Write down who contributed what, in the agreement and on the deed, the day it happens. Say one partner puts in $45,000 and the other $15,000 toward a $60,000 down payment on a $300,000 home. Under joint tenancy that becomes a 50/50 split the moment the deed records; under tenancy in common with a 75/25 recital, each partner keeps what they brought.¹ Documenting the extra as a loan with a signed promissory note, or matching deed percentages to dollars, keeps that math provable.

What co-ownership means at tax time

Three federal rules matter, and all follow ownership rather than the relationship. Contributing more than your recorded share can be treated as a gift, and the IRS annual gift tax exclusion is $19,000 per recipient in 2026, above that, the giver generally files Form 709. The mortgage interest deduction belongs to the person legally liable on the debt and paying the interest, so a partner who isn’t on the note usually can’t deduct it. And at sale, IRS Publication 523 computes each owner’s gain as the gain on the entire sale multiplied by that owner’s percentage, with each single filer meeting the two-year ownership and use tests able to exclude up to $250,000, versus $500,000 on a married couple’s joint return.²

That last exclusion applies to a main home only, so talk with a tax professional before closing. If you’re buying a second place together, our guide to buying a vacation home covers those rules instead.

Before you sign: a co-buyer’s legal checklist

Six things belong on your list before the purchase agreement is signed, each cheaper now than in litigation later.

Hire a real estate attorney: One attorney can draft the agreement, but each partner should have their own review it. That’s separate from the role of a closing attorney, whose job is the transaction.
Read the deed before closing day: The title company prepares it from your written instruction. Confirm the survivorship wording and percentages a week ahead, not at the closing table.
Never rely on a verbal agreement: Interests in real estate generally have to be in writing to be enforceable, so a handshake about ownership has almost no value in a dispute.
Keep a shared contribution ledger: Track every down payment dollar, closing cost, and major repair in one file, using bank transfers rather than cash.
Update your wills and beneficiary designations: Unmarried partners inherit nothing by default under state intestacy law, so a tenancy-in-common share with no will goes to your relatives.
Settle the financing first: Get a fully underwritten preapproval before you write an offer. The home buying process guide maps the sequence, and the CFPB’s home buying resources cover the disclosures you’ll both sign.

How Align fits your buying strategy

Local real estate agents bring Samantha in for a second opinion when their buyer arrives preapproved somewhere else. She regularly finds a lower rate or less cash to close, whichever helps the buyer more.

That comes from the broker model. One application goes to multiple wholesale lenders, so your offer is built on the loan that fits your situation, not the only one a single bank sells. A 2024 Polygon Research analysis of federal mortgage data found broker borrowers paid about $10,662 less over the life of a $400,000 loan than borrowers at nonbank retail lenders.

Build your homebuyer game plan

Sources: Polygon Research, Loan Costs Channel Study 2024 (2023 federal HMDA data, 30-year fixed purchase loans; commissioned by United Wholesale Mortgage and Willow Canyon Advisors).

FAQ: Buying a home with a partner

Here are answers to common questions about buying a home with a partner.

Should unmarried partners use joint tenancy or tenancy in common?

Joint tenancy fits partners contributing equally who want the survivor to inherit the home automatically, outside probate. Tenancy in common fits unequal contributions, you can hold 60/40 or any split, and lets each partner leave their share to chosen heirs, though that share may pass through probate. Many unmarried couples with unequal down payments choose tenancy in common plus a written agreement. Give the wording to your settlement agent, which is one reason it pays to know how to choose a title company.

What should a co-ownership agreement include?

At minimum: each partner’s ownership percentage and initial contribution, how the mortgage, taxes, insurance, and repairs get split, what happens if one person can’t pay, a breakup process (buyout right, appraisal method, forced-sale terms), a dispute-resolution clause such as mediation, and what happens if a partner dies. Have a real estate attorney draft or review it before closing, separate from the attorney handling your closing.

What happens to the house if we break up?

Whatever your agreement says, and if you have no agreement, you’re left negotiating or asking a court to order a partition sale, which is slow and expensive. Typical agreement solutions include one partner buying the other out at an appraised value, a right of first refusal, or selling the home and splitting proceeds by ownership share. Refinancing removes the departing partner from the mortgage. The same exit math shows up in the pros and cons of co-buying with friends.

Do both partners have to be on the mortgage?

No. You can hold title jointly while only one partner carries the mortgage, which sometimes helps when one has weak credit. But the non-borrowing partner has ownership without payment obligation, and the borrowing partner carries all the debt, so your written agreement should address who really pays. Remember that anyone on the loan is liable for 100% of the payment, not half. Run both versions through a mortgage preapproval before you decide.

The bottom line on buying a home with a partner

Two documents decide almost everything for unmarried co-buyers. The deed sets ownership: joint tenancy with rights of survivorship gives each partner an equal share that passes automatically to the survivor, while tenancy in common lets you record 70/30 or any split matching what each of you contributed. The co-ownership agreement sets the rest, contributions, monthly splits, buyout pricing, and forced-sale terms. And whatever the deed says, every borrower on the note owes 100% of the payment, which is why the exit plan and the financing plan get written together.

If you’re ready to buy a home with your partner, talk to Align Lending, we’ll shop your scenario across our lender network, price it with one borrower and with two, and show you the numbers side by side. Call 248-506-5727 or get started online today.

Footnotes:

1. Example figures are hypothetical and for educational purposes only; they do not constitute an advertisement of credit terms or a rate quote under federal or state lending laws. Your rate and terms will depend on your application and market conditions. Return to text.

2. This article is for informational purposes only and is not intended to provide legal or tax advice. Tax treatment of co-ownership, gifts, deductions, and gain on sale depends on your circumstances. Consult a qualified tax professional and a licensed attorney about your situation. Return to text.

This article is for informational purposes only and is not intended to provide legal, financial, or tax advice. Consult a qualified professional about your situation. Program terms and figures shown are illustrative, are not a rate quote or an offer of credit, and are subject to change. Align Lending is an independent Michigan mortgage broker, NMLS #2041154.