We have all heard the infamous saying, “One to Buy; Two to Sell,” or, alternatively, we have said it to clients. But what are we really trying to convey to our clients with this phrase?
One of the most common questions we are asked by sellers during the closing process is: Why is my spouse required to sign the deed and other applicable transfer documents to sell the Property when my spouse was not on title when I purchased the Property?
The short answer? Because it is required to convey clear title! The longer, more explanatory answer: North Carolina General Statute 29-30 provides in part that if an owner of real property dies, a (non-title holding) surviving spouse can claim a life estate in 1/3 of the value of that real property (with Life Estate meaning the Life Estate holder being able to live on and/or use the Property until that person’s death). While the interest the surviving spouse receives is an inchoate interest – in layman’s terms – a potential interest – the surviving spouse has every right under North Carolina Law to make the election (to the Life Estate) even if a property has since been conveyed to “new” buyers. This applies to ANY real property owned by a married individual during the marriage!
Let’s look at an example: After graduating from college and landing her first “grown up” job, Jane purchases a beautiful, North Raleigh, single family home! She receives a deed to the property and is delighted to see her name shining brightly on the page, “Grantee, Jane Doe, unmarried.” Jane moves in, makes upgrades, organizes dinner parties, and hosts Thanksgiving, etc. At one of her dinner parties, she meets Taylor, the person of her dreams. They get married and begin their “happily ever after” in the house Jane purchased. Later, they decide they want to continue their (love) story in a new house.
Jane lists her house for sale and walks through the process of selling her beloved home to the new, excited buyers when she receives an email from the closing attorney’s office, “Hi Jane, please know that, in addition to you, Taylor will need to sign the Deed transferring the Property as well”. Jane’s first reaction is, “Why? I did not even know Taylor when I purchased this house,” to which the attorney replies, “Jane, I realize you bought this Property before you were married and that your now spouse, Taylor, was not part of that purchase; however, Taylor received a marital interest in the Property the moment you all were legally married. In fact, Taylor has a marital interest in any real property you may currently own (individually). Think of it like this, if Taylor did not sign the deed to transfer this Property to the new buyers, and you died, Taylor could still have a potential interest in this Property while Taylor is still alive. Could you imagine owning a house and finding out that someone else had an interest in it and could use your property for so long as they were living!?”.
It might not make sense from a logical standpoint, but that is what North Carolina law provides and what is required from a title perspective to ensure buyers receive marketable title to a property, so beware and be warned!
Just because you or a client of yours bought a house non-inclusive of their spouse, that spouse still needs to “sign away” their interest in that Property in order to deed that Property forward, free and clear of any potential marital interest!
Are there ways to prevent marital interests from attaching in the first place? Absolutely! Are there ways to extinguish marital interests when you are not selling a home? Most definitely! Stay tuned for more on this and everything you need to know when dealing with married homeowners… from a title perspective, of course!
With this knowledge, now you can Rest Easy.