PROTECTING SPOUSAL RIGHTS AND LENDER INTERESTS
State-Specific Variations
While the principles of marital property laws and homestead rights apply broadly, the specifics can vary
significantly from state to state. Some states have more stringent requirements for spousal signatures,
while others may have different protections for non-titled spouses.
Dower and Curtesy Rights: In certain states, particularly in the South and Midwest, dower and
curtesy rights may also come into play. These traditional rights give a surviving spouse a legal claim to
a portion of the deceased spouse’s property, including the marital home. Even though these concepts
are largely obsolete and have been replaced by modern homestead rights, some states still recognize
them, necessitating the non-titled spouse’s signature on mortgage and title documents to waive these
rights.
Statutory Requirements: Some states have statutes requiring spousal signatures on mortgage
documents, even if the spouse is not on the title. For example, a non-titled spouse must sign the
mortgage documents in Florida if the property is the couple’s primary residence. This requirement
ensures that the homestead exemption is preserved and that the non-titled spouse’s rights are
acknowledged. This requirement of the Florida constitution is called 'joinder of spouse' and means
that the non-owner spouse must sign the deed or mortgage for it to be valid. Joinder of Spouse is
required even if the other spouse isn't a co-owner of the property and/or no longer residing there.
*Note that some lenders may require non-borrowing spouses to sign ancillary documents, such as the new
Closing Disclosure. These aren't title-related, and how they are handled can depend on the lender's
interpretation of state marital laws and CFPB privacy rules. Refer to the State-Specific Marital Signature
Requirements for a state-by-state breakdown.
Protecting Spousal Rights and Lender Interests
The requirement for a non-titled spouse to sign title and mortgage documents, even if they are not listed
on the title or mortgage, is ultimately about protecting both spousal rights and lender interests. Marital
property laws and homestead rights ensure that both spouses have a say in what happens to the family
home, which is often the most significant asset in a marriage. These protections do not automatically
disappear during separation or divorce proceedings, which can complicate real estate transactions, but
also provide necessary safeguards.
Understanding these requirements is crucial for homeowners and professionals involved in purchasing or
refinancing a primary residence during a divorce. Awareness of state-specific laws and the implications of
marital status can prevent delays and disputes during the transaction process. By recognizing why these
requirements exist and working with a CDLP®, both spouses can navigate the complexities of real estate
transactions with greater clarity and confidence, ensuring their rights and interests are fully protected.
08 DIVORCE REAL ESTATE & MORTGAGE JOURNAL