Q: Does a spouse have to sign the warranty deed or the deed of trust if they don’t own the property?
A: This is a very tricky situation with multiple answers depending upon the facts you are dealing with. Here are some general rules:
(1) Even if one spouse’s name does not appear on the original vesting deed but the property was acquired during marriage, the property is presumed to be community property (owned by both spouses) and the unnamed spouse may be required to execute a warranty deed to convey or execute a deed of trust to encumber. Always feel free to contact Underwriting Counsel if there is resistance from the spouse whose name appears on the vesting deed for joinder by the unnamed spouse. If the property is homestead, the unnamed spouse must execute the warranty deed or deed of trust.
(2) If the property was acquired prior to marriage (the separate property of the person whose name appears on the original vesting deed), and the person has subsequently married and the property is the marital homestead, the unnamed spouse must execute the deed to sell or execute the deed of trust to encumber the homestead interest.
(3) Even if a prenuptial agreement is in effect and the property is the homestead for the non-owner spouse, he/she must be a party to the transaction because the Texas Constitution and Texas Family Code states that neither spouse can convey, sell or encumber the homestead without the joinder of the other spouse. Provisions found in prenuptial agreements which state that one spouse waives his/her homestead rights in the property may not be relied upon for title insuring purposes. (Simple rule: if the property is homestead, both spouses must participate in the transaction.)