8.16 Husband And Wife

8.16.1

In General

A married person who holds title or an interest in real property may experience, depending on the jurisdiction where the property is located and the kind of property held, a distinct disability or restriction on a married person's unilateral capacity to convey, encumber, or otherwise affect real estate property without the joinder or express consent of the other spouse.

Any disabilities or restrictions are purely of constitutional or statutory origin and are referred to or encountered in connection with any of the following areas:

  • Community property rights.
  • Conveyances between spouses.
  • Curtesy or modern equivalent.
  • Dower or modern equivalent.
  • Divorces.
  • Homestead rights.
  • Joint tenancies between husband and wife.
  • Tenancies by the entirety.
  • Transaction in fraud of the marital rights of the other spouse.
  • Rights of surviving spouses under probate codes.

In regard to title insurance, the safest rule of practice is to assume that the joinder or consent of the other spouse is necessary, unless an exhaustive examination of local legislation and case law, in connection with the specifics of the transaction, allows a different conclusion.