Question 1: If the property is currently in my spouse’s name, can I legally force my spouse to add my name to the deed?
Generally speaking, you cannot legally force your spouse to add your name to a deed unless there is an enforceable legal agreement, such as a prenuptial or postnuptial marital agreement, that requires it.
To add your name to a property your spouse already owns, you also cannot “edit” the old deed (for example, by writing in your name on a paper copy). Instead, your spouse must create and sign (and most likely record) a new deed that transfers the property from “Spouse A” to “Spouse A and Spouse B” together.
If your spouse wants to refinance the mortgage, most lenders require both spouses’ names to be on the title to protect the bank’s interests. If you file for divorce, a judge can order that the title be changed or that the property be sold and the proceeds split.
Before pushing to be added to the deed, note that most mortgages have a due-on-sale clause that requires the full loan to be due and paid if ownership changes (though federal law generally prevents banks from triggering this when adding a spouse to a title or transferring property to a spouse).
Even if your name is not on the deed, you may still have a legal interest in the property. In community property states, property acquired during the marriage is usually considered to be owned equally by both spouses, regardless of whose name is on the deed. If you used marital funds, such as joint paychecks for the mortgage or home improvements, the property is usually treated as a marital asset in any state.
In addition, some states have rights that are granted to spouses if the property is considered the married couple’s homestead property. The exact rights granted to a surviving spouse may vary depending on the state where the property is located and whether or not there is a valid prenuptial or postnuptial agreement.
Question 2: How can I remove someone from ownership of my home?
Removing someone from a property deed can often be more complicated than adding them. Because property ownership is usually treated as a protected legal right, you generally cannot unilaterally remove someone else from a deed without their consent or a court order.
There are three common ways to remove someone from home ownership.
- Voluntary removal. If the person is willing to be removed, they can usually “gift” or sell their portion of the ownership. There are various ways to accomplish this, and it would likely require that new deeds be properly created, signed, and filed with the appropriate recording office.
- Mandatory removal. If the other person refuses to be removed from the title, you cannot simply file a new deed by yourself. You must seek a legal remedy, such as asking a judge to partition the property so that you each have your own discrete interests, or forcing a sale and splitting the sale proceeds between you and the other person.
- Removal at death. If you own the home as joint tenants with right of survivorship, removing a deceased owner is usually a simpler process, but it may involve the court.
Keep in mind that removing someone from the deed does not usually remove them from the mortgage if they are also a party to it. So, if you and an ex-partner are both on the mortgage and they sign a deed to give you the house in its entirety, they may remain legally responsible for the debt in the eyes of the lender. There are ways to remove them from the mortgage, but it may require refinancing the home in your name only. Call Kerlin Walsh Law for guidance at 708.448.5169.
