Can a Separate-Property Owner sell his house without his
wife’s signature in a Community-Property State?
Texas is a community-property state. Many times, one spouse
will own the home before marriage as his or her separate
property. After marriage, if the parties live in the home
together, then notwithstanding the separate property
character of the home, the non-owner spouse acquires certain
separate-property remains separate-property only if all
upkeep expenses (e.g., utility bills, insurance, property
taxes, etc...) are paid from separate-property funds. As
soon as a portion of these expenses paid by joint account or
non-separate-property account, it’s status of being a
separate-property becomes voidable (questionable) and
depending on the amount used from co-mingled funds,
attorneys from both sides and the judge, the wife in this
example may be rewarded some homestead rights and/or portion
of the sale proceeds.
The non-owner spouse’s homestead rights are possessory in
nature. Without the signature and cooperation of the
non-owner spouse, the owner spouse can only transfer good
title to a buyer but cannot deliver possession. Therefore,
it is essential to have both spouses sign the listing
agreement, the contract, the deed, and other closing
More specifically, see the following questions and answers:
am not an attorney and I am not giving legal advice.
The following Q&A is based on many hours of research,
reading articles and
with real estate attorneys,
Every situation and every state or location law is different. Please consult
your real estate attorney for any question or concern about
the subject and/or any of the scenarios discussed below.
Q1. What is the “Homestead Rights”?
let me clarify “homestead”, there are two types of
(1) people use it as “homestead exemption for Tax purposes”
which is irrelevant here.
(2) The one
that affects the sale of separate-property is “homestead
Right which is not ownership”. State of Texas (and
perhaps other community-property states), gives that right
to the non-owner spouse that other spouse (separate-property
owner) cannot sell properties without her consent and
approval, regardless if she is entitled to the property or
husband, in this example, is the only owner and is the only
one in the title. However, the non-owner spouse (the wife)
needs to sign the deed in order the deal goes through.
Q2. What if the married couple never
lived in the property together, e.g., it was an investment
Property, should they both sign a listing agreement ?
A2. Somebody just had this
situation, He owned it before they got married and per his
statement: They built a house together and moved in it. She
never spent a night in his first house. He did not have her
sign the listing agreement and the title company did not
require her to be at closing (she came anyway, just in case)
or sign off on anything.
That particular title company
explained that if she had even stayed one night in the home
that they would need her to sign at closing.
Q3. If after living in the
Separate-Property house, they purchase a new house and they
move in to the house and claim the new house as their
homestead, Can the husband sell his Separate-Property house
without the wife’s signature?
the wife needs to sign an acknowledgement and affidavit of
not returning to the previous house. The reason is that, it
is possible the couple decide to go back to the first house
after a while.
conditions, where the first house has been rented for a
couple of years and there is a record of being occupied by
tenants for those couple of years, and the couple now live
in another house claimed as homestead, some title company
waive the requirements for spouse signature.
Q4. If they had prenuptial agreement
indicating that the house will be the husbands' and will remain with the
husband after the divorce, could it make a difference and resolve the issue
for the husband?
within community-property state (e.g., Texas) has nothing to
do with the “Homestead Right” that state gives to the
spouse. Non-owner spouse still needs to sign
Q5. Can the husband sells or transfers
the title to his three kids from previous marriage, without
the non-owner spouse signature, do title companies insure
husband cannot sell or transfer the title of the house
without spouse’ consent and signature. This particular title
company does not insure the title in this case.
Q6. Do you have any recommendation that
helps the husband, without requiring the non-owner spouse
the husband cannot do it without spouse’ consent and
signature. If she refuses to sign and if the husband must
sell, he may have to divorce her first.
Conclusion: When taking a listing agreement on a home in
that situation, you should always require both spouses to
sign the listing agreement and the contract. The title
company will require both spouses to execute the deed in
order to extinguish the homestead rights of the non-owner