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Legal Questions about Homestead Waiver

The homestead waiver is a document in which a homeowner’s spouse relinquishes his or her statuary homestead rights under applicable state law. Some types of contracts, such as mortgages, require the homeowner’s spouse to sign the homestead waiver. This way, should there be a foreclosure; the lender would be able to recoup its losses up to the full loan amount. Without the waiver, part of the property would be exempt from creditors’ claims. While homestead waivers are important for estate planning, couples undergoing legal separation or divorce may feel unsure about the best legal recourse.

The question below address similar and some of the most commonly asked questions answered by lawyers.

Can my wife, not yet legally separated, purchase a house on mortgage without my consent or signature on title?

A house purchased during a marriage would be considered marital property irrespective of how it is titled, unless the property is purchased with funds received by gift or inheritance. The mortgage company will require you to waive your homestead rights if your wife applies for a loan.

I decided to pursue a low interest first-lien home equity loan with just me as borrower on a house purchased prior to my marriage. However, paperwork required both me and my wife to sign as mortgagors. What are our options?

The bank may only require your spouse, who is not an owner, to sign the homestead waiver document acknowledging that she has no interest in the property. If the bank insists that your wife sign as a mortgagor, you may tell the bank that you are not willing to give your spouse an ownership interest in your property. If it is a Housing and Urban Development (HUD) loan, you may file a complaint with the HUD.

Typically, private mortgage companies have their own set of requirements. In this case, they may want to ensure that your wife does not claim a marital interest in any “increase in value” of the property during the marriage. However, a post-nuptial agreement in which your wife waives any interest in the property should have the same effect as a homestead waiver document.

If I sign a homestead waiver, would I have no claim to property even in a community property state?

Unless your husband includes your name on the title of the house that belonged to him prior to your marriage, it would not be considered community property. In case your husband refinances his house, the only document the lender may require of you is the waiver of homestead rights you may have as a surviving spouse. However, in the case of a divorce, you would have no rights to the property as your name is not included in the title. Simply put, if your husband defaults on the refinancing loan, the lender may foreclose easily as you would have no legal claim to the house.

Can I purchase a house without my spouse’s signature?

While you may purchase a house independently, the lender may require your spouse to sign a homestead waiver document if you are obtaining a mortgage for that purchase. This allows the lender to recoup losses in case of a loan default without worrying about your spouse’s homestead rights.

If you are not sure whether your interests are protected while signing a mortgage, it is best to have your doubts cleared with a lawyer.
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