Putting a Spouse on the Title? It's Simpler Than It May Seem.

By Benny L. Kass
Saturday, March 1, 2008

Q: M y husband wants to put my name on the deed to his house. Because he obtained the mortgage a long time before our marriage, we have been told by the mortgage company that the only way my name can be added is by refinancing. Is there any other way to add my name to the title? We are prepared to pay off the mortgage if, and only if, I can be on the title, too.

My husband is planning to retire sometime next year. He has health problems, and his pension will be significantly lower than his current salary. I am already retired. Does it make sense to pay off the mortgage?

A: Your lender is wrong. Although, as a courtesy, you and your husband may want to tell the mortgage company that you intend to be added to the title, you really don't have to do this.

It should be easy to put your name on the title. All you need to do is have your husband sign a deed, conveying the property from himself (as party of the first part) to you and himself (as party of the second part).

You should discuss this with a lawyer, because in some jurisdictions you will also need a spousal affidavit, whereby you each certify that you are married to the other. Because you are married, you should not have to pay any recordation or transfer tax, but a nominal filing fee to have the deed recorded.

You should also make sure you understand the different ways that title can be held. Discuss this with the lawyer who will be assisting you, because there are significant legal and financial repercussions depending on how title is held.

I suspect that the mortgage company based its requirement that you refinance on two grounds. I'll address both of them:

  • The original lender's security would be affected: I don't consider this reasonable grounds for the requirement, because the original lender is fully secured whether or not you are put on the title.

    When your husband bought the house, the deed to the property was recorded among the land records, and then the deed of trust (the mortgage document) was recorded. If the deed adding your name to the property is recorded, it will be a lower priority than the deed of trust. So, should your husband default on the mortgage payments, the lender -- who is in first place on the land records -- can foreclose on the property.

    The lender would have to provide you (and anyone else in the chain of title) notice of the pending foreclosure action. But the only ways that you could stop the sale would be to pay off the loan or to file for bankruptcy court protection.

  • This change would trigger the "due-on-sale" clause: I don't consider this reasonable either, because in your situation this clause won't come into play.

    Most mortgage documents contain a due-on-sale clause. This means that should the property owner transfer all or part of the property to another party, the lender reserves the right to call in the loan.

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