Can a Married Person Sign a Deed of Trust Separately?

Marriage and property rights are a tricky affair. Should the marriage dissolve or a spouse passes away, issues may arise as to who has rightful claim to the property. The deed of trust is an important public record denoting among other things the parties to the mortgage. In general, a husband and wife must sign the deed in trust together.

A deed of trust for the public record identifies the trustor (the borrower), the trustee (usually the title company) and the beneficiary (lender). The deed of trust includes a legal description of the property, the parties, loan date and maturity, loan provision and requirements, late fees, legal procedures, riders, and any other clauses. In general, if you and your spouse are on the title, you must sign the deed in trust together.

A community property state is one in which property, other assets and debts owned during the marriage are considered equally shared by husband and wife. The nine community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska, which recognizes community property laws, allows spouses to sign an agreement making specific assets community property. If you live in any one of these states, both you and your spouse must sign the deed in trust.

A common law state recognizes separate property of a husband from that of his wife. If you live in a common law state, you may sign a deed of trust separately from your spouse, particularly if only your name appears on the title of the property. If both your names appear on the title, then you must sign the deed of trust along with your spouse.

The general rule in all states is to have both spouses sign the deed of trust. However, there are exceptions. For instance, in a community property state, you and your spouse may sign a written agreement making some or all community property the separate property of one spouse. In such a case, the spouse named in the written agreement may sign the deed in trust separately. The issue of property ownership becomes complicated, particularly in divorce or upon the death of a spouse. In some cases, even if there is an agreement in place separating assets in a community property state, it may be difficult to establish what is truly "separate." Discussion with an attorney, particularly as it relates to a will, is paramount to protect your interest in the property.

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