Married, and Not on the Deed. What Are My Rights?

Sometimes, only one spouse is named on the deed. This can be because one person already owned the home before marriage, or because one spouse inherited a deed. Or perhaps there are financial or tax advantages to having only one person on the deed and not the other. Or the sole named deed holder simply wants to hold the home as separate property.

That’s all fine. The deed holder can continue owning the home, and leave it to their partner in a will. If the couple’s situation ever changes, the will can always be revoked and rewritten.

Still, if you’re in the home but not on the deed, you’ll want to know what would happen in the event of a separation or divorce. Here, we go through some common scenarios and frequently asked questions.

The Home Has a Mortgage. Does That Mean the Deed Has to Stay As-Is?

If one spouse quitclaims a mortgaged home from one name into both names, the current deed holder will likely need to refinance to bring on a co-owner. Call the mortgage servicer to learn the particulars for your loan.

Remember that your home is the lender’s collateral, so the company has an interest in any new claim on the deed. The co-owner’s credit profile will be a factor in the refinanced terms and rates.

If the person who’s not named on the deed has a heavy debt load or is in a high-liability profession, study your options with special care. It could be best to leave that person off as long as this remains the case.

To transfer property interests to one another, spouses can create a quitclaim deed, or another type of deed that suits their goals.

How Does the Deed Transfer Work?

A deed holder can quitclaim their sole ownership into the names of both spouses, so they become co-owners. Joint ownership with survivorship rights is a common choice. This is because most people think about adding their spouse’s name to the deed to keep the home out of probate court if the spouse who owns the property dies first. But there are multiple options for vesting a deed as co-owners.

Same-sex couples may co-own property as joint tenants with survivorship rights, as tenants in common, or, if married, as tenants by the entirety. Available in some states, tenancy by the entirety comes with survivorship rights while protecting each spouse from the other’s debts.

Creating survivorship rights involves transferring a 100% interest (not half) into the two names. Then the co-owner receives the home upon the other’s death. This vesting takes precedence over whatever the parties say in their last wills.

In some states a sole deed holder can easily switch into co-ownership upon marriage. In California, for example, an interspousal grant deed does the job.

Your new co-ownership will be on record for the public to see after you properly quitclaim the deed into both names and have the quitclaim deed notarized and filed with the county recorder’s office.

We Live in a Common Law State. What Does This Mean?

If you’re like most deed holders, you do live in a common law state when it comes to family law matters. In a common law state, only the partner who’s on the deed can finance or transfer the property or any interest in its value. A person who is not on the deed has no say if their spouse wants to sell the home, or dies and leaves it to someone else.

A couple can jointly own a home, of course — but only by naming both partners on the deed.  

Need to know who’s on the deed? Retrieve a copy of your deed here.

Say the deed names your spouse as sole owner. This means your spouse has exclusive and complete rights in the property.

That said, if you ever split up, a divorce court will determine the ultimate distribution of assets. That could involve placing a lien on the deed holder’s title in order to distribute a portion of its value to the other person. Some parties want more certainty. Creating a prenuptial agreement in advance of the marriage can steer the property distribution in a way that varies from the state’s default method.

To sum this up: Generally, if you aren’t named on the deed, you don’t own the home. To change this, the deed holding spouse can draft a quitclaim deed and deed the home to both of you.

We Live in a Community Property State. What Does This Mean?

Do you live in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin? In these community property states, property and debt acquired during a marriage is jointly owned.

If you’re married and live in Alaska, Florida, Kentucky, Tennessee, or South Dakota, you may opt into community property, though it’s not the default. Couples living in these states can use community property trusts. The tax benefits can be significant.

A spouse who isn’t on the deed receives rights to the home under community property laws — if one of the partners acquires the deed while married. In practical terms, this means the named spouse legally owns the home, but their spouse who isn’t named still has rights in the property if they divorce. This is protection for the spouse who isn’t named on the deed.

If you want to give up your community rights, quitclaim the home and record the quitclaim deed in the county, together with a preliminary change in ownership form.

Tip: In community property states, look up partition or exchange of community property. You can own the property in equal or unequal shares, by agreement. If the couple splits up, the spouses can divide their interests using this method.

In community property states, a home can still be one person’s property alone (separate property) if the one brought it into the marriage at the start, or inherits it or receives it as a gift. In that case, the sole owner can quitclaim the property to both if they want to own it jointly. Once the spouse’s name is on the deed, even separate property becomes community property.

Courts can find that the couple treated their wealth as community property based on the way they handle their housing costs and accounts. Having a lawyer draft a legal agreement can help the spouses demonstrate their intent to keep property separate.

Are You Forgetting Anything?

Changing a deed means changing legal rights and responsibilities. Before making a change, learn whether state transfer taxes apply. Check with the state revenue department about the impact on any tax-advantaged homestead status the property might have. A lawyer or tax pro in your state can help you review the tax consequences of your deed transfer.

And call the mortgage servicer to be sure it’s on board. Typically, making changes to the home’s ownership with a deed transfer means having to refinance the home loan.

Deeds.com does not offer financial or legal advice. Use the above considerations as a starting point for your own due diligence. Follow up with your legal or financial professional for guidance pertaining to your needs and circumstances, and state-specific laws.