What are my rights if my name is not on a deed in Tennessee

Depending on the state you live in, your title company might inquire about your marital status. Under various statutes or legal doctrines, some states extend property rights to spouses even if they aren’t on the deed, also referred to as non-titled. If you live in one of these places, your lender or buyer will require that your non-titled spouse sign legal documents to complete the real estate transaction.

Non-titled spouses can acquire interest in your property in three main ways...

1. If a property owner dies without a will

A few states recognize dower and curtesy rights—meaning if a property owner dies without a will, their non-titled spouse will inherit an interest in that property for the rest of their life. In these states, the spouse who isn’t on the deed is required to sign legal documents transferring their potential interest in the property, in order to avoid future ownership disputes. Many states have abolished dower and curtesy rights, but the theory remains in a few places, like Ohio and Arkansas.

2. If the property was purchased during the marriage

In community property states, a spouse automatically gains an undivided ½ interest in any property purchased during the marriage—even if they aren’t on the deed.

There are some exceptions to community property laws including:

• Real estate acquired as a gift or inheritance
• Property purchased before the date of the marriage.

If your title company asks you for information about when you got married, you might be in a community property state. Due to the vested interest of the non-titled spouse, your title company needs to figure out if the real estate transaction involves community property, and if it does, buyers and lenders will require the signature of your spouse on legal documents.

3. If the property is used as the family’s principal residence

Many states recognize the concept of homestead rights. In these places, a family’s homestead, their principal residence, may only be encumbered or sold with the consent of both spouses.

Some states require a recorded designation to declare property as homestead, while others permit the classification based on use alone.

In these instances, your title company may ask you if you live in the house involved in the real estate transaction. This is an important consideration, because your lender or buyer will require the signature of your non-titled spouse for a transaction involving homestead property.

Some states do provide an exception to homestead law for the mortgage or deed of trust you used to purchase the property.

For example:
You are probably in a state that recognizes homestead rights, if your non-titled spouse didn’t need to sign the mortgage that financed your purchase of the property, but is required to sign the refinance.

Should you have any questions about why your title company is requiring your spouse to sign a legal document in connection with your closing, you shouldn’t hesitate to ask. Here at Spruce, we welcome questions about the closing process and are happy to explain marital signing requirements as they apply to your transaction. Get in touch with us here: [email protected]

Let’s consider a few hypotheticals. In Marriage A, Wife was gifted a significant amount of publicly traded stocks from a family member prior to marriage. Husband paid taxes on Wife’s stocks when sold. Are the stocks marital property? In Marriage B, Husband bought a house before the marriage that was never used as the marital home. Wife’s name was never put on the deed. However, when the house needed repairs, Wife paid for the HVAC to be replaced. Is the house Husband’s separate property? In Marriage C, Wife purchased a house during the marriage and the house was foreclosed on. Can Husband be awarded dissipation?

There are two additional doctrines under Tennessee common law by which separate property may become marital property. These are transmutation and commingling. The Tennessee Supreme Court has explained these doctrines as: “Separate property becomes marital property [by commingling] if inextricably mingled with marital property or with the separate property of the other spouse. If the separate property continues to be segregated or can be traced into its product, commingling does not occur…. [Transmutation] occurs when separate property is treated in such a way as to give evidence of an intention that it became marital property.”

Examining some recent Tennessee cases may help understand the § 36-4-121(b)(1)(B)(i) separate property exception as well as the doctrines of transmutation and commingling. For example, In Jones v. Jones, the court determined that stock purchased prior to the marriage and the stock options held by the husband were separate property, but after the marriage occurred, income from the stock became marital property pursuant to the statute and the finding that the wife substantially contributed to the preservation and appreciation of the account. In Telfer v. Telfer, the Court determined a large division of the marital estate in favor of a wife was extreme and inequitable, resulting in an injustice to the husband, because, although the wife’s parent gifted business entities to the wife, the husband contributed to the management of the entities after the gift and marital funds were used to pay taxes for the entities. In Wade v. Wade, appreciation of stocks owned by th husband prior to marriage was properly classified as marital property where wife substantially contributed to the stocks’ preservation and appreciation not only by her indirect contributions as homemaker, wage earner, parent, and family financial manager, but by her direct contributions as monitor of the stocks during the period of her employment with a brokerage firm.

Thus, after examining the caselaw and depending upon what facts the court found important, this is how the hypotheticals above would likely play out: A: The stocks are marital property because by Husband paying taxes on the stock, the parties used marital funds to ensure it was preserved and could appreciate. B: This is a close case, it depends on the value of the house, the cost of the HVAC repairs, and whether the court feels that wife’s actions substantially contributed to the preservation and appreciation of the house. More likely than not, a court should find the House has become marital property due to Wife’s actions, thus the Wife should be entitled to split the value of the house that increased during the marriage, not the entire value of the house. C: Husband may be able to recover dissipation from Wife for half the value of the home at the time of the foreclosure. Dissipation of marital assets is defined in T.C.A. § 36-4-121(c)(5)(B).

What are your rights if your name is not on the deeds?

Does spouse have to be on deed in Tennessee?

What are my rights if my name is not on a deed but married in Tennessee?

What rights do I have if my partner owns the house?