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 = Yes Purchase = 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 * See below	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 5/29/80 Purchase = No	Yes, deed
NEW MEXICO	Yes	No	Yes	Refis = Yes Purchase = 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 = Yes Purchase = 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 = Yes Purchase = 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 = Yes Purchase = No	Yes

*Massachusetts Further Information:

To clarify, in MA a spouse does not need to sign a mortgage refinance.

Three years ago the laws regarding the Homestead Act changed. Before the law changed, if the spouse was on the Homestead Act they were required to sign the mortgage (even if not on title). But, this law is no longer in effect. Spouses are now only required to sign a mortgage if they are on title or a non-title borrower (which would require the mortgage to state that they are a non-titled borrower or the registry may not accept the recording). Also, the new law was made retroactive, so mortgages older than three years also do not need to have been signed by a spouse.