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My Husband’s Name Is Not On the Deed.

Why Does He Have to Sign?

By Gary B. Davis*

Throughout this Article, we will assume the property is owned solely by the wife, but the analysis is exactly the same if property is owned solely by the husband. Although real property in North Carolina may be owned solely by one party to a marriage, if he or she wants to sell the property (or borrow money on it by securing the debt with a mortgage or Deed of Trust), the spouse of the owner, in most cases, will be required to sign the Deed of conveyance (or Deed of Trust) for the transaction to proceed.

This is because of NCGS 29-30 which provides that in the event a married person dies, the surviving spouse can claim a life estate (the right to the use and benefits of the property during the lifetime of the surviving spouse) in 1/3 in value of any property owned by the deceased during the marriage, EVEN IF SHE NO LONGER OWNS IT, unless the spouse had signed the Deed or Deed of Trust.

In other words, if the wife, Mary owns property solely in her name, and sells it to Mr. and Mrs. Brown, but Mary’s husband John does not sign the deed, and Mary then died, even 20 years later, John could have a legal right to take an interest in the house during the remainder of his lifetime. The same analysis applies in the case of a Bank which took a Deed of Trust for security on a loan where John did not sign the Deed of Trust. Obviously, the Browns or the Bank will not be willing to undertake the risk that their home (or their collateral) might be lost to them, and they will require that John sign the conveyance.

In some cases, John may have waived that right by entering into a properly prepared pre-nuptial (before marriage) or ante-nuptial (after marriage) Agreement. In those cases, John’s signature would not be required if Mary decided to sell the property, or borrow money by signing a Deed of Trust on the property.

* Gary B. Davis (now retired) was an attorney with Mattox, Davis & Edwards, P.A. and was a board certified specialist in the area of real property, residential, business, commercial and industrial transactions. Copyright 2013.

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