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|
|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|
|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|
|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”|
|MASSACHUSETTS||No||No||Yes, however a Declaration of Homestead must be recorded||Yes||Yes, “Waiver of Homestead”|
|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|
|NEVADA||Yes||No||Yes||Yes||Yes, a quitclaim deed executed contemporaneously with the mortgage|
|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|
|NORTH CAROLINA||No||Yes; Termed statutory substitute.||Yes||Refis = YesPurchase = No||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|
|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|
|SOUTH CAROLINA||No||No||Yes; Homestead State for tax purposes only.||No||N/A|
|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|