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Marital Signature Requirements


We constantly get questions on whether or not a non titled spouse needs to sign on the mortgage documents so figured its the perfect topic for a post.  This post can now be a reference for all you multi-state lenders.  First off some general rules; if both husband and wife appear on title, both must sign documents (mortgage, rescission and TIL); If only one spouse is on title to property being mortgaged, the following applies:

(i) If the state is a community property state (property is owned in common by husband and wife), then both husband and wife must sign documents (mortgage, rescission and TIL).

(ii) If the state retains dower or curtesy rights (rights in estate of husband/wife), both husband and wife must execute documents (mortgage, rescission and TIL).

(iii) If the state is a common law jurisdiction (what’s her’s is her’s, what’s his is his), both parties do not need to sign documents.  However, many states have additional requirements for property that is homestead (owner occupied). Be mindful of these additional requirements.

Essentially all non borrowing spouses must sign throughout the nation unless the subject property is in a state that is a common law jurisdiction without applicable homestead exemptions.

Below is a chart with a state by state breakdown:

 

STATE COMMUNITY PROPERTY DOWER HOMESTEAD SPOUSE MUST SIGN SEPARATE INSTRUMENT
ALABAMA No No Yes Refis  = YesPurchase = No No
ALASKA Yes; In 1998 AK passed a unique Community Property Act, under which spouse may opt-in to creation of a community property estate.  However, for title purposes only the spouse(s) vested in title need sign the documents. No Yes Yes Yes, called a “Waiver of Homestead Rights”
ARIZONA Yes -However, if lender is looking to community property, such as wages or salary of the borrower spouse, for repayment of a mortgage loan, the non-borrower spouse must execute a marital community joinder to legally bind the marital community to the repayment of the mortgage loan. 

 

No Yes; Consensual liens have priority over homestead.  The homestead need not be waived.  Homesteads normally will not appear in title evidence since they are created automatically. Yes, unless the property was acquired by one spouse before the marriage or by gift, devise or descent durring the marriage. No
ARKANSAS No Yes Yes Yes Yes, contact FNAS
CALIFORNIA Yes- Both husband and wife must execute deed of trust which is to encumber property of the community.  If record title to real property is held as a spouse’s sole and separate property, signature of non-owner spouse is not required.  However, non-owner spouse should execute a disclaimer of interest in the property (Quitclaim Deed, Interspousal Transfer Deed, etc.)  No Yes Yes Yes,  Interspousal Transfer Deed or Quitclaim Deed
COLORADO No No Yes Yes; The non-titled spouse has to sign only if there is a recorded declared homestead.  There is no requirement for the non-titled spouse to sign because of the statutory homestead exemption. Yes, quitclaim deed
CONNECTICUT No No No No N/A
DELAWARE No No No No No waiver – non borrowing spouse must sign Mortgage, TIL and RTC even if spouse holds as married sole and separate (verified 10/1/08)
DIST OF COLUMBIA No No. The “Omnibus Trusts and Estates Amendment Act of 2000″ became law on or about April 26, 2001, dower was repealed. No No Prior to repeal of the law, a separate instrument was allowed, but not preferred; called a renunciation
FLORIDA No No Yes Yes; If homestead property, must sign mortgage, a separate waiver is insufficient No
GEORGIA No No No No N/A
HAWAII No No No No N/A
IDAHO Yes No Yes; If homestead property, must sign mortgage, a separate waiver is insufficient Yes “Abandonment of Homestead” document may be used.  Must be prepared by an attorney.  Rarely used
ILLINOIS No No Yes Yes “Waiver of Homestead”  Specific as to the mortgage
INDIANA No No No No N/A
IOWA No No Yes Yes No
KANSAS No Yes Yes Yes Yes, called various names
KENTUCKY No Yes Yes Yes Yes, a “release of Waiver of Dower Rights”
LOUISIANA Yes No Yes Yes unless the property is the separate propertyof the spouse then no signature is necessary. Yes, “Waiver of Homestead Exemption”
MAINE No No No No N/A
MARYLAND No No No No N/A
MASSACHUSETTS No No Yes, however a Declaration of Homestead must be recorded Yes Yes, “Waiver of Homestead”
MICHIGAN No Yes Yes Yes No
MINNESOTA No No Yes Yes No
MISSISSIPPI No No Yes Yes No
MISSOURI No Yes; The term “Dower” is not used and instead is called “Marital Rights”. Yes Yes Yes, contact FNAS
MONTANA No No Yes Yes Yes, as long as executed contemporaneously with mortgage.  Called a Release of Homestead Rights and is specific to the mortgage transaction
NEBRASKA No No Yes Yes No
NEVADA Yes No Yes Yes Yes, a quitclaim deed executed contemporaneously with the mortgage
NEW HAMPSHIRE No No Yes Yes No
NEW JERSEY No Yes; Applies only to a property owned by a married person prior to May 28, 1980. Yes Refis  = Yes.  Any NJ Title Company will demand signature by both spouses since a new right, known as the right of joint possession of the principal marital residence attaches to property acquired on or after 5/29/80Purchase = No Yes, deed
NEW MEXICO Yes No Yes Refis  = YesPurchase = No Yes, “A Sole and Separate Property Agreement and Conveyance” or quitclaim or warranty deed
NEW YORK No No No No N/A
NORTH CAROLINA No Yes; Termed statutory substitute. Yes Refis  = YesPurchase = No No
NORTH DAKOTA No No Yes Yes No
OHIO No Yes- There is a homestead exemption at Ohio Rev. Code §  2329.66.  However, it does not affect or invalidate or impair the lien or a judgment rendered on a mortgage.  Id. at § 2329.661. Yes Yes No
OKLAHOMA No No Yes Yes No
OREGON No No No No N/A
PENNSYLVANIA No No No *No, however a PA Title Company will require both spouses if search discloses or one has knowledge of a pending divorce, non-titled spouse must join in a deed or mortgage. A affidavit will be signed by the one spouse stating that there is no pending divorce if not. N/A
RHODE ISLAND No No No No N/A
SOUTH CAROLINA No No Yes; Homestead State for tax purposes only. No N/A
SOUTH DAKOTA No No Yes Yes No
TENNESSEE No No Yes Yes No
TEXAS Yes No Yes Yes No
UTAH No No Yes; In order for a principal residence to be considered “homestead” for execution purposes, the owner must record a Declaration of Homestead.  Typically, such declarations are terminated before recording a first deed of trust. No N/A
VERMONT No No Yes Refis  = YesPurchase = No No
VIRGINIA – signature of nontitled spouse only required on a Deed of Gift. No No; “Augmented Estate” Regime – if during a term of his or her life, if spouse conveys property for less than full  value, then spouse must join in a deed or mortgage. No No; As long as the mortgage represents a bonafide transaction.However, a Virginia title company may require both spouses to sign the security instruments because a spouse has the option to take a statutory interest in the property of the deceased spouse in lieu of taking under the decedent’s will.  N/A
WASHINGTON Yes No Yes Yes No waiver – non borrowing spouse must sign Mortgage, TIL and RTC even if spouse holds as married sole and separate (verified 10/1/08)
WEST VIRGINIA No No; Abolished in 1991. Yes Yes No
WISCONSIN No No Yes; The failure of a non-titled spouse to waive homestead results in the mortgage being void.  Homestead may also be waived by a separate instrument. Refis  = YesPurchase = No Yes


Comments

  1. In Pennsylvania, if a husband and wife owned a property (both on title) could one spouse take out a mortgage without the other spouse’s knowledge/consent. Would the other spouse need to sign something?

    • No matter what state it is, whoever is on title must consent to the mortgage. Any title insurance company will require that both title holders sign off on the collateral documentation (the mortgage).

  2. I have a question. I am buying a house in NJ. My wife has good credit, but I don’t. She is qualified for a mortgage. Can she buy the house in her name only, or will the mortgage company make me apply as well?

    • The mortgage can be applied for directly by your wife so long as she has the qualifications. I would speak to a mortgage professional about such. We are happy to put you in touch with a few.

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