Marital Rights:Marital Rights: Clarification on the Clarification on the Requirements Requirements for a Spouse’s for a Spouse’s SignatureSignature

WHAT THESE WHAT THESE MATERIALS ARE NOT:MATERIALS ARE NOT: They are not intended to They are not intended to

explain what marital rights are. explain what marital rights are. It is enough to accept that It is enough to accept that “marital rights” exist in “marital rights” exist in Missouri and that the failure to Missouri and that the failure to effectively deal with the effectively deal with the existence of such rights in existence of such rights in connection with a real estate connection with a real estate transaction can result in an transaction can result in an unmarketable title.unmarketable title.

WHAT THESE WHAT THESE MATERIALS ARE NOT:MATERIALS ARE NOT: They are not intended to advocate They are not intended to advocate

the use of marital waivers or the use of marital waivers or consents. In fact, the use of such consents. In fact, the use of such documents is a customer documents is a customer convenience only. It is always convenience only. It is always acceptable to require that both acceptable to require that both spouses execute all deeds, deeds of spouses execute all deeds, deeds of trust, easements, leases, plats, trust, easements, leases, plats, installment contracts and such other installment contracts and such other documents as may directly affect documents as may directly affect the title to an interest in real estate.the title to an interest in real estate.

WHAT THESE WHAT THESE MATERIALS ARE NOT:MATERIALS ARE NOT: They do not represent universal truths They do not represent universal truths

when it comes to underwriting when it comes to underwriting standards established by title insurance standards established by title insurance companies. Underwriting positions may companies. Underwriting positions may – and probably do – vary from – and probably do – vary from underwriter to underwriter. This is underwriter to underwriter. This is particularly true in regard to homestead particularly true in regard to homestead issues. Positions may vary based on the issues. Positions may vary based on the circumstances of the specific circumstances of the specific transaction also. transaction also. AlwaysAlways confirm with confirm with the specific underwriter before the specific underwriter before launching into a course of action.launching into a course of action.

Types of SpousesTypes of Spouses

There are only two types of There are only two types of spouses: spouses: titled spousestitled spouses and and non-titled spousesnon-titled spouses..

AllAll spouses (titled and non- spouses (titled and non-titled) must sign something in titled) must sign something in real estate transactions.real estate transactions.

Titled SpousesTitled Spouses

Titled SpousesTitled Spouses: : cannot waivecannot waive their ownership interest, but their ownership interest, but instead instead must signmust sign all instruments all instruments affecting the title OR convert affecting the title OR convert themselves into non-titled themselves into non-titled spouses.spouses.

Non Titled SpousesNon Titled Spouses

Non-titled SpousesNon-titled Spouses: : may waive may waive marital rightsmarital rights and/or consent to and/or consent to transactions by the other spouse transactions by the other spouse alone OR can join on instruments alone OR can join on instruments affecting the title, but they affecting the title, but they must must sign somethingsign something

Purchase Money Deeds Purchase Money Deeds of Trustof Trust Purchase money deeds of trustPurchase money deeds of trust where where

title is to be taken by one spouse alone title is to be taken by one spouse alone under a purchase contract identifying under a purchase contract identifying that spouse as the only purchaser may that spouse as the only purchaser may be executed by the purchasing spouse be executed by the purchasing spouse alone and the non-buying spouse need alone and the non-buying spouse need not sign anything; provided, however, not sign anything; provided, however, purchase money deeds of trust with purchase money deeds of trust with future advance provisionsfuture advance provisions should not be should not be treated as “purchase money” and the treated as “purchase money” and the non-buying spouse will either have to non-buying spouse will either have to sign a waiver or join on the deed of trust.sign a waiver or join on the deed of trust.

Missouri Is Not a Missouri Is Not a Community Property Community Property State!State! Missouri is not a community property state. Missouri is not a community property state.

“Community property” does not exist here, “Community property” does not exist here, and the requirement that a spouse sign and the requirement that a spouse sign neither creates community property nor neither creates community property nor acknowledges in any way that the property is acknowledges in any way that the property is community property. Nor do community community property. Nor do community property issues affect the necessity of property issues affect the necessity of requiring a spouse’s signature. The fact that requiring a spouse’s signature. The fact that the property would the property would notnot be community property be community property under the law of California or New Mexico or under the law of California or New Mexico or Nevada or Texas or any other state has Nevada or Texas or any other state has nothing to do with whether a spouse in nothing to do with whether a spouse in Missouri must sign a document.Missouri must sign a document.

Pre Nuptial Pre Nuptial AgreementsAgreements Ante-Nuptial or Pre-Nuptial Agreements Ante-Nuptial or Pre-Nuptial Agreements

or Post-Nuptial Agreements authorizing or Post-Nuptial Agreements authorizing either spouse to deal with real property either spouse to deal with real property without the consent or joinder of the without the consent or joinder of the other spouse are not accepted by most other spouse are not accepted by most major underwriters for purposes of major underwriters for purposes of overcoming a requirement that a overcoming a requirement that a spouse join on a deed or mortgage or spouse join on a deed or mortgage or deed of trust or other document.deed of trust or other document.

Interests In Real Interests In Real PropertyProperty Any interest in real property is subject Any interest in real property is subject

to the guidelines regarding spouses’ to the guidelines regarding spouses’ signatures. Deeds or deeds of trust are signatures. Deeds or deeds of trust are all generally recognized as creating an all generally recognized as creating an issue as to marital status and the issue as to marital status and the potential need for a spouse’s potential need for a spouse’s signature, but so too do easements, signature, but so too do easements, leases, installment contracts/contracts leases, installment contracts/contracts for deed and any other conveyance or for deed and any other conveyance or grant of an interest in real property. grant of an interest in real property.

Non Consensual LiensNon Consensual Liens

Spouses who are not also owners of an Spouses who are not also owners of an interest in the real property cannot subject interest in the real property cannot subject that property to non-consensual liens. that property to non-consensual liens. Therefore judgment liens or state Therefore judgment liens or state andand federal tax liens against the non-titled federal tax liens against the non-titled spouse alone do not attach to property (or spouse alone do not attach to property (or any interest therein) owned by the other any interest therein) owned by the other spouse in his or her name alone. spouse in his or her name alone.

This should not be confused with the Missouri This should not be confused with the Missouri situation where federal tax liens against one situation where federal tax liens against one spouse alone now attach to property titled in spouse alone now attach to property titled in both spouse’s names. That change in federal both spouse’s names. That change in federal law does not create a lien where the spouse law does not create a lien where the spouse against whom the lien is filed is NOT in title.against whom the lien is filed is NOT in title.

HomesteadHomestead

Missouri is a “homestead” states and has a Missouri is a “homestead” states and has a homestead statute which is not generally well homestead statute which is not generally well known. The concept exists in Missouri known. The concept exists in Missouri nonetheless.nonetheless.[i[i]] RSMo 513.475.2RSMo 513.475.2 As a general As a general rule, when the inquiry is made as to whether rule, when the inquiry is made as to whether Missouri is a homestead state, the real question Missouri is a homestead state, the real question being asked is: “Does a spouse need to sign?” being asked is: “Does a spouse need to sign?” The answer is invariably “yes,” although what The answer is invariably “yes,” although what the spouse has to sign may vary.the spouse has to sign may vary.

““Either spouse separately shall be debarred Either spouse separately shall be debarred from and incapable of selling, mortgaging or from and incapable of selling, mortgaging or alienating the homestead…and every such alienating the homestead…and every such sale, mortgage or alienation is hereby declared sale, mortgage or alienation is hereby declared null and void….”null and void….”

Titled SpousesTitled Spouses

The titled spouse The titled spouse mustmust sign… sign…always.always.....every timeevery time……no exceptionsno exceptions. .

As an “owner” they must convey their As an “owner” they must convey their ownership interest or mortgage it or ownership interest or mortgage it or grant an easement over it or lease it to grant an easement over it or lease it to someone else, etc. They cannot consent someone else, etc. They cannot consent to the other spouse doing it aloneto the other spouse doing it alone[ii[ii]]. .

They cannot “waive” their ownership They cannot “waive” their ownership rights. rights.

Tenancy By The Tenancy By The EntiretyEntirety In Missouri, if a husband and wife hold title as In Missouri, if a husband and wife hold title as

tenants by the entireties, neither alone may tenants by the entireties, neither alone may validly convey or mortgage the property.validly convey or mortgage the property.

The signature of one alone on a document is The signature of one alone on a document is totally ineffective to transfer or mortgage the totally ineffective to transfer or mortgage the title or create an insurable easement or grant title or create an insurable easement or grant a lease. Please do not confuse this with a lease. Please do not confuse this with issues concerning a valid power of attorney issues concerning a valid power of attorney or court-ordered sales or probate or or court-ordered sales or probate or incompetency proceedings, all of which are incompetency proceedings, all of which are beyond the scope of this article.beyond the scope of this article.

Marital Rights WaiverMarital Rights Waiver

As an “owner” they must convey their ownership As an “owner” they must convey their ownership interest or mortgage it or grant an easement over it or interest or mortgage it or grant an easement over it or lease it to someone else, etc. They cannot consent to lease it to someone else, etc. They cannot consent to the other spouse doing it alonethe other spouse doing it alone

They cannot “waive” their ownership rights.They cannot “waive” their ownership rights. Such an option is NEVER acceptable under Missouri’s Such an option is NEVER acceptable under Missouri’s

marital rights laws. marital rights laws. While it may not be necessary for the non-borrowing, While it may not be necessary for the non-borrowing,

titled spouse to execute the loan application or the titled spouse to execute the loan application or the note or any other loan documents (this is a lender note or any other loan documents (this is a lender decision, not at title decision), the non-borrowing decision, not at title decision), the non-borrowing spouse who is in title spouse who is in title mustmust execute the deed of execute the deed of trust/mortgage before it is insurable trust/mortgage before it is insurable

Converting to Non Converting to Non Titled SpouseTitled Spouse Quit Claim DeedQuit Claim Deed Titled Spouse is listed as “Married Titled Spouse is listed as “Married

Person”Person” Lender requirement, not title Lender requirement, not title

requirement.requirement. Judgments now attach!!!!Judgments now attach!!!!

Non Titled SpousesNon Titled Spouses

““Marital rights” exist as to any Marital rights” exist as to any Missouri real property owned by Missouri real property owned by the other spouse, whether the other spouse, whether acquired before or after the acquired before or after the marriage, and whether acquired marriage, and whether acquired by inheritance or gift or purchase by inheritance or gift or purchase or otherwise. or otherwise.

Non Titled Spouses Non Titled Spouses and Signingand Signing Requiring the spouse, if any, of Requiring the spouse, if any, of

the seller/borrower to execute the the seller/borrower to execute the deed or mortgage/deed of trust is deed or mortgage/deed of trust is always an acceptable practice. always an acceptable practice.

Marital Waiver is also acceptable Marital Waiver is also acceptable if transaction specificif transaction specific

RecordingRecording

The waiver or consent must be an The waiver or consent must be an original, in writing, executed by original, in writing, executed by the non-titled spouse, and duly the non-titled spouse, and duly acknowledged and recorded. acknowledged and recorded.

It should be recorded immediately It should be recorded immediately before the document to which before the document to which consent is being given. consent is being given.

The DocumentThe Document

When preparing a marital waiver, When preparing a marital waiver, the cover page should show the the cover page should show the titled spouse as the “Grantor” titled spouse as the “Grantor” (even though the titled spouse is (even though the titled spouse is clearly NOT the grantor) to assure clearly NOT the grantor) to assure the document is correctly indexed the document is correctly indexed in the grantor/grantee index. The in the grantor/grantee index. The buyer or lender could appropriately buyer or lender could appropriately appear as “Grantee.”appear as “Grantee.”

Purchase Money Deeds Purchase Money Deeds of Trustof Trust In Missouri only that part of the loan In Missouri only that part of the loan

being used to acquire the property (or being used to acquire the property (or pay closing costs) qualifies as pay closing costs) qualifies as “purchase money. “purchase money.

The deed of trust is also not a The deed of trust is also not a “purchase money” security instrument “purchase money” security instrument where the loan is being made to pay where the loan is being made to pay off a pre-existing installment contract off a pre-existing installment contract or contract for deed. or contract for deed.

Purchase Money Deeds Purchase Money Deeds of Trustof Trust Where both spouses are purchasing Where both spouses are purchasing

the property and will both be identified the property and will both be identified as grantees on the deed, both spouses as grantees on the deed, both spouses must execute the purchase money must execute the purchase money deed of trust. deed of trust.

Where only one spouse is taking title, Where only one spouse is taking title, the other spouse may be treated as a the other spouse may be treated as a non-titled spouse, and may execute a non-titled spouse, and may execute a consent or waiver. consent or waiver.

Purchase Money Deeds Purchase Money Deeds of Trustof Trust The status of a purchase money The status of a purchase money

mortgage is unique in that without mortgage is unique in that without the funds to pay for the title the the funds to pay for the title the borrower would never own the title borrower would never own the title to begin with. If the borrower did to begin with. If the borrower did not own the title, other “secured” not own the title, other “secured” creditors, whose liens might pre-creditors, whose liens might pre-date the purchase money lien, date the purchase money lien, would have no asset at all from would have no asset at all from which to collect. which to collect.

Purchase Money Deeds Purchase Money Deeds of Trustof Trust At common law, unaffected by At common law, unaffected by

statute, purchase money statute, purchase money mortgages are afforded super-mortgages are afforded super-priority—they become senior to priority—they become senior to liens which were in existence liens which were in existence ahead of them but would have ahead of them but would have had nothing to attach to had nothing to attach to but forbut for the loan of the purchase money the loan of the purchase money

Future Advance Deeds of Future Advance Deeds of Trust/Revolving Credit Trust/Revolving Credit Loans Loans While the initial advance at While the initial advance at

closing is undoubtedly purchase closing is undoubtedly purchase money, money, subsequent advancessubsequent advances have nothing to do with acquiring have nothing to do with acquiring the title to the property. the title to the property.

Subsequent advances may very Subsequent advances may very well be subject to the marital well be subject to the marital rights of the non-titled spouse. rights of the non-titled spouse.

Future Advance Deeds of Future Advance Deeds of Trust/Revolving Credit Trust/Revolving Credit LoansLoans Non-titled spouses must either Non-titled spouses must either

consent to or execute a purchase consent to or execute a purchase money deed of trust that contains money deed of trust that contains future advance provisions is far future advance provisions is far and away the safest course of and away the safest course of action to follow. action to follow.