Whether both spouses should be on the title is a personal decision that depends on the preference of the couple and their personal circumstances.
Having the names of both spouses on the title grants ownership over the property to both spouses. This means that one spouse alone cannot transfer ownership. Both spouses have to sign the deed if they want to sell the property. If only one spouse’s name is on the title, the presumption is that the spouse has sole ownership over the property and can transfer it solely by signing a deed without the other spouse’s consent. This is the rule in equitable distribution states, such as New York,
The circumstances, however, can be more complicated in community property states, such as California, which provides that anything purchased by a spouse during the marriage is considered community property, even if only one spouse’s name is on the title. The spouse whose name is not on the title, however, can only enforce his or her rights to the community property with the assistance of a lawyer, since the presumption remains that the names on the title reflect the owners of the property.
A Name on Title, Mortgage, Both or None
Having a spouse’s name on the title is different from having a spouse’s name on the mortgage. A spouse’s name on the title reflects ownership. A spouse’s name on the mortgage reflects debt and obligation.
Both spouses on mortgage, one spouse on title
Sometimes, the spouse’s name is on the mortgage but not on the title. If you are in this situation, remedy it immediately by asking your spouse to execute a quitclaim deed in your favor. Having your name on the mortgage but not the title shows you have the obligation, but none of the benefits of owning the property.
Both spouses on title, one spouse on mortgage
At times, a spouse’s name is on the title but not on the mortgage. This spouse has the benefits of ownership, but not the debt or obligation of a mortgage. Because this can be a problem for lenders when they need to repossess the house, they will usually request, as a condition to the grant of a loan, the non-borrowing spouse to sign a loan guaranty or to sign away property rights.
One spouse on title and on mortgage
When only one spouse’s name is on the mortgage and on the title (and this usually happens when the spouse purchases the property prior to marriage), but then after marriage, the other spouse starts contributing to the mortgage, what is the treatment? Unfortunately, for the other spouse who is contributing to the mortgage, that spouse is still not considered an owner. The spouse on the title and mortgage can always claim that the other spouse’s contribution was made for general household expenses. To remedy this, the other spouse can probably send the check directly to the lender institution so the other spouse’s contribution is recorded. In cases of divorce, the other spouse’s equity on the house can be counted.
What Happens on Death or Divorce
In case of divorce, the spouse whose name is not on the title may not be entitled to a share of the property.
In case of the titled spouse’s death, the other spouse may not receive the property as a tenant by the entirety. The property will pass to the titled spouse’s estate and distributed by either intestacy (if the titled spouse dies without a will) or by will.
Adding and Removing a Spouse’s Name
Once a spouse’s name is added to the title, one cannot remove it anymore except through another deed (usually a quitclaim deed). Even if the spouse did not contribute anything towards the value of the property, that spouse who was added to the deed will be considered an owner ine very sense. If you want to remove that spouse’s name on the title, that spouse’s signature is needed to sign a quitclaim deed. The spouse can refuse to sign this quitclaim deed transferring ownership without compensation.
In summary, having both spouses’ names on the title is a personal decision to be made by the couple depending on their circumstances. Once made, it is an action that is hard to reverse. If you need assistance in making this decision, you should consult with a lawyer who can provide you with advantages, disadvantages, and the consequences of your actions based on your personal circumstances. Should you have further questions, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.
