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Understanding Buying and Selling Real Estate as a Married Couple

October 25, 2017

Real Estate

As a real estate attorney licensed in North Carolina and South Carolina, I often field questions about which spouse needs to be on title and who needs to sign documents in a real estate closing. This article is designed to resolve a few of those questions.

One to Buy; Two to Sell?

In North Carolina, the rule of thumb for married couples is that one spouse may purchase real property, but both spouses must sign the deed to sell property. Although this is a helpful memory tool, it isn’t completely true in every situation. If a married person can buy property in cash, with no deed of trust required, then he/she can buy the property without his/her spouse signing anything.

However, if the married person must obtain a loan to buy the property, the lender will require a deed of trust to secure its loan and both spouses must sign the deed of trust and associated documents.

Why does my husband/wife have to sign the deed?

The most common question I am asked by sellers is: Why does my spouse have to sign the deed to sell my property? This is a completely logical question as it would seem intuitive that if only one person is on the title to real property, only that person would need to sign the deed selling that real property. However, North Carolina law requires both spouses to sign a deed to properly convey title.

The rationale for this requirement is because in North Carolina a spouse acquires a marital interest in the other spouse’s real property regardless of whether the property was acquired prior to or after you were married.

For example, if you die, your spouse can claim an elective share in that property regardless of whether their name appears on the deed to that property. Thus, in order to extinguish these marital interests during the sale of real property, the deed conveying the real property must include the signatures of both spouses.
The bottom line is that in North Carolina, both spouses must sign a deed to sell or transfer real property!

A tale of two Carolinas

Surprisingly, North and South Carolina laws are very different. The North Carolina rule of thumb, one to buy, two to sell, is not the law in South Carolina. In South Carolina, there are no marital rights that may remain attached to property like in North Carolina. Therefore, if only one spouse is on title, then that spouse may sell the property without the other spouse signing the deed. Similarly, if only one spouse is going to be on the deed then the other spouse is not required to sign the mortgage.

No matter which side of the closing you are on, it is always necessary to consult a real estate attorney to make sure your interests are protected. At Helms Law Group, P.A., we have attorneys licensed in North Carolina and South Carolina to assist you with all of your real estate needs. Call us at 704.289.4577 and we will be happy to help.