Q: I am recently separated from my husband and he has agreed to transfer to me the property which we jointly hold in the District. We have signed a legal document known as a "separation agreement," and one of the provisions of that agreement requires that both of give up our dower rights. In order to complete the transfer of the property, I am refinancing the house and my new leader is insisting that my husband sign the deed of trust. Why is this necessary?
A: The doctrine of dower is one of the oldest rights found in our legal history. Dower traditionally has protected a married woman by giving her an interest in property which her husband owns during the continuance of the marriage relation. Thus, if the husband wanted to deed or will the property to someone else, the wife would have a claim to the property during her lifetime.
In the District of Columbia, because of this dower right, a married man or woman has the right to own property in his or her own name and lenders will always insist that the other spouse sign the deed of trust. The reasoning goes as follows. When a lender makes a mortgage loan, the buyer must sign the deed of trust, conveying the property to a trustee to hold in the event of a default. If the buyer is unable to make payments, the trustee will then be directed by the mortgage lender to foreclose on the property, through a public auction sale. In effect, the trustee holds legal title to the property, in trust, however, for the lender. If the trustee must sell the property at an auction sale, the trustee must be able to convey all outstanding interests in the property. Insofar as the dower interest can defeat a sale, the mortgage lender is properly requiring that your husband sign the deed of trust, thereby transferring to the trustee his dower interest.
You should make it clear to your husband that signing the deed of trust does not obligate him in any way to the mortgage lender. He is not required to sign the promisory note, and equally important he will have no ownership interest in the property.
You have raised an interesting question regarding the legal affect of a separation agreement. It is true that you and your husband have agreed to waive any dower right. However, the title companies in this area have taken the position that since the dower right is created by status, it is a very important right which cannot be dismissed lightly.
In Maryland, dower was abolished many years ago and you would not have to go through this same procedure. In Virginia, dower does exist.