An old set of laws in Massachusetts makes it important to make sure that both spouses sign the title to their home when selling it, even though only one spouse has their name on the deed, typically because the property was bought before marriage or inherited it subsequent to marriage.
Not having both signatures on the title is not, in itself, illegal, but simply not sensible because of Massachusetts laws that protect the rights of the spouse whose name wasn’t on the actual deed.
In practice, most real estate agents and solicitors who are involved in assisting with a sale will check whose names are on the title and recommend that both signatures are on it before the sale actually goes through. However, if this is overlooked, or you intend selling your property privately without the help of an estate agent, read this article which explains why it is advisable to have both signatures on the title.
Why a single signature on a title could be problematic sometime in the future
Many Massachusetts residents would be surprised to learn that under state law, whose name is on the deed doesn’t necessarily mean that they have sole ownership of the property if they are married. Legislation which is relevant to this issue includes a modernized version of two archaic laws that were first devised to protect the welfare of surviving spouses in the event that the spouse whose name was on the deed died.
The law, called ‘elective share’ helps to protect surviving spouses from potential homelessness or financial insecurity. The same law can complicate the sale of a property because if the name of one of the spouses is not on the title when sold, that spouse may at some time in the future attempt to exert their rights over the property, in particular if their spouse dies and hasn’t left any provision for them in their will. Basically, in Massachusetts, elective share means that the surviving spouse can ‘elect’ to claim rights over the marital home, even though it had been sold. The fact that they hadn’t signed the title when it was sold is, in legal terms, an indication that they hadn’t relinquished their ownership rights in the property.
You can see where this could lead down the line if a property has been sold to new owners without the property having clear title (i.e. both signatures on it). Years later they get a call from an attorney representing one of the previous spouses with a claim on part of the property because they have been left bereaved by a spouse who has left them nothing in their will.
Is this likely? In practice, it is a rare event, but so is being knocked down and killed by a car driver when crossing a road. It can still happen. Both spouses signing a title is equivalent to a form of insurance. That’s why any agent representing you when you sell your home, will, or should, check the existing deed and advise that both signatures are on the title if there is only one on the deed at that point. This means that both spouses, the one whose name is on the deed and the one whose name isn’t, are legally relinquishing any rights of ownership of the property when they sell it, meaning that there is no potential future headache for the new owners.
Ghosts from the past – dower and curtesy rights
Many years ago, Massachusetts made sure that there was some provision in law for spouses whose husbands or wives had died and potentially faced homelessness or financial insecurity because their spouse, intentionally or unintentionally had left them out of their will.
Dower rights, which still exist in some U.S. states, e.g. Arkansas and Kentucky, have been replaced by the principle of ‘elective share’ in Massachusetts. Dowser rights were a relic of English common law and protected wives from financial insecurity if their home owning spouse didn’t include them in the will on death. Dower rights gave the widow the right to one third of their husband’s estate for the rest of their life.
A similar law, called curtesy rights, applied to widowers, who could claim to use his deceased wife’s property for the rest of his life, but in this case it was only if he and his wife had had children.
In most states, including Massachusetts, these rights have long been abolished, but have been replaced with a modern equivalent, called the elective share, which is similar but not necessarily exactly the same in detail in those states that have it. The elective share gives the surviving spouse the right to ‘elect’ to not accept the provisions or lack of them in their spouse’s will and claim a share of the estate. This can get very complicated in practice, because the actual share depends on other beneficiaries named in the will, especially surviving children. When it comes to extending elective share to making a claim on a home that had already been sold, but with only one name on the title when sold, it can get even more complicated.
What happens if your spouse refuses to sign the title of a property being sold?
The bottom line is that if the home you and your spouse have been living in only has your name on the deed, you will need to get your spouse to sign it if the property is to be sold. Again, it’s not because having two signatures on it is a legal requirement, it is because realtors and attorneys representing you and the buyer(s) are unlikely to proceed with the sale if it doesn’t have clear title.
If you believe that you may have problems with selling your home because of existing state law provisions, it is sensible to talk to a real estate attorney in Boston area to provide you with legal advice and discuss your possible options.