This post is updating a post from February of 2012.
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, but this is not legal advice, certainly consult with your internal counsel with any specific concerns or questions. First off some general rules; if both husband and wife appear on title, both must sign documents (mortgage, right of rescission); 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).
(ii) If the state retains dower or curtesy rights (rights in estate of husband/wife), both husband and wife must execute documents (mortgage, rescission).
(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.
*There are some ancillary documents inclusive of the new Closing Disclosure that many banks will also have the non borrowing spouse sign. These documents are not title related documents and each situation and how the lender interprets both the marital rules in the state as well as the privacy rules of the CFPB will come into play.
Below is a chart with a state by state breakdown: