Why Does My Spouse Need to Sign Closing Documents if They Aren’t on the Deed?

This may seem like a strange request if you are the sole owner of the property involved in the real estate transaction. But don’t worry, it isn’t a bad attempt at small talk!

Depending on the state you live in, your title company might inquire about your marital status. Under various statutes or legal doctrines, some states extend property rights to spouses even if they aren’t on the deed, also referred to as non-titled. If you live in one of these places, your lender or buyer will require that your non-titled spouse sign legal documents to complete the real estate transaction.

Non-titled spouses can acquire interest in your property in three main ways...

1. If a property owner dies without a will

A few states recognize dower and curtesy rights—meaning if a property owner dies without a will, their non-titled spouse will inherit an interest in that property for the rest of their life. In these states, the spouse who isn’t on the deed is required to sign legal documents transferring their potential interest in the property, in order to avoid future ownership disputes. Many states have abolished dower and curtesy rights, but the theory remains in a few places, like Ohio and Arkansas.

2. If the property was purchased during the marriage

In community property states, a spouse automatically gains an undivided ½ interest in any property purchased during the marriage—even if they aren’t on the deed.

There are some exceptions to community property laws including:

  • Real estate acquired as a gift or inheritance
  • Property purchased before the date of the marriage.

If your title company asks you for information about when you got married, you might be in a community property state. Due to the vested interest of the non-titled spouse, your title company needs to figure out if the real estate transaction involves community property, and if it does, buyers and lenders will require the signature of your spouse on legal documents.

3. If the property is used as the family’s principal residence

Many states recognize the concept of homestead rights. In these places, a family’s homestead, their principal residence, may only be encumbered or sold with the consent of both spouses.

Some states require a recorded designation to declare property as homestead, while others permit the classification based on use alone.

In these instances, your title company may ask you if you live in the house involved in the real estate transaction. This is an important consideration, because your lender or buyer will require the signature of your non-titled spouse for a transaction involving homestead property.

Some states do provide an exception to homestead law for the mortgage or deed of trust you used to purchase the property.

For example:
You are probably in a state that recognizes homestead rights, if your non-titled spouse didn’t need to sign the mortgage that financed your purchase of the property, but is required to sign the refinance.

Should you have any questions about why your title company is requiring your spouse to sign a legal document in connection with your closing, you shouldn’t hesitate to ask. Here at Spruce, we welcome questions about the closing process and are happy to explain marital signing requirements as they apply to your transaction. Get in touch with us here: contact@spruce.co

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