Will My Spouse Need To Sign?

“One’s best fortune or their worst is their spouse”

This falls in the FAQ category. You own real property in the State of North Carolina. You were not married at the time you bought it, or you were, but the deed is in just your name alone. Now you want to sell it. Does your spouse have to sign the deed?

The answer to this question is “yes, your spouse must sign.” And here’s why:

If you live in North Carolina, your spouse is always a beneficiary of your estate. If you die without a will, then intestacy statutes will automatically award at least a portion of your estate to your spouse. If you attempt to avoid this outcome by leaving a will which gives all of your estate to persons or entities other than your spouse, North Carolina law allows your spouse to take an “elective share.” Under either scenario, the surviving spouse may opt to take as his or her share a life estate in one-third in value of all real estate which the deceased spouse owned during the marriage except where the surviving spouse has waived his or her rights by signing a deed or released or quitclaimed his or her interest. For this reason, if the spouse of the property owner doesn’t sign the deed, the new property owner takes the property subject to a contingent interest of the other spouse who may or may not elect to claim the life estate. In other words, if you receive a deed signed only by a husband, then your title to the property may be affected by the wife’s right to take an elective life estate. Since that decision is not made or rejected until the death of the owning spouse during the marriage, the elective interest continues to affect the marketability of the property.

These rules may not apply in certain narrow instances. There are a few conveyances in North Carolina exempted by statute. Certainly, a divorce, a written separation agreement and perhaps a prenuptial agreement may also change the rule. Talk with a North Carolina real estate attorney if you will have difficulty in obtaining your spouse’s signature for closing.