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Tina
Tina, Lawyer
Category: Family Law
Satisfied Customers: 33167
Experience:  JD, 17 years legal experience including family law
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Can a new spouse automatically be responsible for/or included

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Can a new spouse automatically be responsible for/or included on the mortgage of a cohabited house (new spouse is also co-owner of house, both with rights of survivor) to protect finances, should the mortgagee die?

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. Before I can give you an accurate answer to your question, please provide the following additional information:

You wish to know whether the lender can be compelled to add the new spouse to the mortgage on the property?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 4 years ago.

Sort of, (but I don't think it should be necessary to record a new document) Will the new spouse be legally, through marriage laws, to have the right to continue paying that mortgage obligation without the lender demanding a new note should the spouse on the original note die and leave the surviving spouse, who is already co-owner and already has rights of survivor on the Title to the house.

I see. Thank you for clarifying your question for me.

If the spouse who is responsible on the mortgage passes away, the surviving spouse would normally have to refinance the loan in order to add their name to the mortgage. There is typically no method for compelling a lender to add a spouse to a note, the lender can and will likely require that the mortgage be refinanced.

However, if you were to die and your spouse remained current on the loan, the lender is not likely to know of your death and would not typically take any action against the surviving spouse. However, there is some risk involved in that since the lender could accelerate the loan and demand payment in full until your spouse does refinance if they discover that the holder of the note is deceased.

Therefore, it is usually best to refinance under these circumstances so both owners are listed on the mortgage.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Customer: replied 4 years ago.

Is this, in a sense, a purely contractual type of issue as opposed to a 'marriage right' issue? Doesn't seem fair to the new spouse.

Hello again,

Yes, it is based on contract law and since your spouse is not a party to the mortgage contract, there are not marital laws that can be used to compel the lender to add the spouse to the loan. Under principles of contract law, a new contract must typically be entered into, which in this case means refinancing the loan unfortunately.

Tina and 3 other Family Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you very much for that clarification.

You are very welcome and all the best to you.

 

 

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Thanks again.

Tina

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