*Consult your licensed and admitted attorney in your state for legal advice. This post is sharing my own experiences as an experienced REALTOR® licensed in both NC and SC.
In North Carolina we have a saying, ‘It takes one to buy and two to sell real estate in North Carolina.’
Generally, if both husband and wife appear on title, both must sign documents (mortgage, rescission and TIL); If only one spouse is on title to property being mortgaged, individual state law applies.
North Carolina is what’s called a dower state. Properties purchased by a married couple is a marital asset even if only one buyer signs documentation (unless that property is purchased by an entity*) and the property is equally owned by both parties, each with rights and responsibilities to the property. When making a purchase, if the intention is for each spouse to protect the others’ marital rights to the property should one spouse pre-decease the other, the closing attorney should include both spouses on the title with rights in common, or as directed by your closing attorney.
Properties owned prior to the marriage are not necessarily marital assets unless the non-signing spouse completes major updates to the property as a major investment in the property. Each scenario must be evaluated on a case-by-case basis.
In the case of a spouse inheriting a property, the non-inheriting spouse must sign all documentation to list and sell that property. Often the non-inheriting spouse tells me, ‘That’s not my property and I don’t need to sign.’ Signing to list and sell, and ultimately to close on that property’s sale is for the non-inheriting spouse’s protection. The spouse who did not inherit the property is signing away both his rights and his further responsibilities to that inherited property.
In contrast, South Carolina is not a dower state, it’s a Homestead (owner occupied) state and common law jurisdiction – what’s hers is hers, what’s his is his. Any husband or wife may freely and individually buy or sell any property with no benefit or responsibility to the other party. As long as the spouse is not on title, the spouse will not be required to sign, and perhaps more importantly, not be due any proceeds.
In the case of a married couple who has purchased a home together, but with only one spouse on the title in SC, if the other spouse wishes to receive a portion of the proceeds from closing and the parties don’t agree, that non-titled spouse must be awarded a court order for the proceeds to be divided.
*A Caveat – properties owned by an entity, such as an LLC or Corporation, or an interest owned by a Trust follow different rules of law and the above doesn’t apply.
NOT INTENDED FOR LEGAL ADVICE – Consult your favorite real estate attorney for full details.
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Chrystal is a REALTOR®, Broker in Charge of Real Estate Realty LLC, a boutique firm specializing in working with investors, and principal of The Safari Group LLC, a local, homegrown real estate group, specializing in all phases of the residential and small business real estate market, including First Time Home Buyer, New Construction, Finance, Marketing, Objection Handling, Relocation, Technology, Foreclosures, Short Sales, Portfolio Development, Luxury Homes and GREEN Features. Contact her at 704.562.1030; TXT for faster service