Why is my spouse (or ex-spouse) being required to sign documents when they aren’t on the loan or title?
Short answer: In Texas, the primary factor is homestead law, secondary to community property laws. If the property is (or could be) the couple’s homestead, both spouses must consent to sell or mortgage it. Title insurers and lenders build their closing requirements around those rules, which is why a spouse must sometimes sign even if they’re not on the deed or the loan. This is often referred to as the joinder of the spouse – joining in on the document.
Homestead
In the simplest of terms, the homestead is where a person or family resides. It’s not the same as the homestead exemption filing for property tax reduction because you can have a Texas homestead even if you never claim the property tax exemption on a portion of its valuation. From its agrarian founding as colonies, through the days of the Republic, and continuing today, Texas has strongly protected the homestead and essential personal property of a person or family. While Texas is a community property state, it is a misstatement to say that community property is why “the spouse has to sign everything” – rather, it is homestead laws.
A family may have only one homestead at a time, and a single person is deemed to be a family unto themselves for purposes of homestead protection.
Buying, Selling, Refinancing, Taking out a Home Equity Loan, or other encumbrances
Section 5.001 of the Texas Family Code clearly states that “neither spouse may sell, convey, or encumber the homestead without the joinder of the other spouse” except as allowed within the Family Code or other rules of law. It also states that this is regardless of whether the homestead is community property or separate property. There are some narrow exceptions to the joinder requirement, but few involve real estate transactions, and rarely will a title company or lender take the chance, as we’ll discuss below.
Non-Titled Spouses
If you were single when you purchased the property and then got married, the property itself can still be your separate property, but homestead rights automatically vested in your spouse when they began occupying it with you as part of your family. That means you cannot sell or encumber the property without their agreement, even if they don’t receive proceeds from the sale or aren’t responsible for repaying the loan. They are often referred to as a non-titled spouse in this scenario. Texas law prohibits you from jeopardizing their right to live there by selling it or causing a lien which could be foreclosed unless they agree to it. This extends even to contracts for home improvements, such as new windows or roof, if the contractor wants to be able to later file a lien on the property if they don’t get paid. Even the formal abandonment of the homestead requires the consent of the other spouse, according to the Property Code.
If you owned separate property, later got married, but you and your spouse never occupied it together as your homestead, the title company may still want a signed statement from both of you to that effect so they can be sure that it isn’t subject to homestead requirements – typically called a Non-Homestead Affidavit – or a Marital Status Affidavit. If you are married and your spouse will not be on the loan (the promissory note), the law presumes that you two are acquiring it as community property and if there’s even a chance that it could be a marital homestead, the non-purchasing spouse would be required to sign some documents at closing – particularly the Deed of Trust which places the lien on the property. Even if you are purchasing as a sole and separate investment property, the lender and/or title company are likely to require signed and sworn statements to that effect from both of you to prove for their records that the transaction is not subject to homestead requirements. The lender must satisfy their underwriters that the transaction is not community property or homestead so that their lien will stick, and the title company must satisfy their underwriters that a claim on the title insurance policy will not arise later due to mishandling of homestead property.
If you are married and listing your separate property for sale, and it might be or have been homestead property, we encourage both spouses to sign the listing paperwork and contract to set the stage for the paperwork that will be necessary at or before closing to extinguish the homestead or certify that it is not your homestead.
Divorce
If it was community property but you received it as separate property under a divorce decree, it’s very possible that a crucial last step was overlooked by the divorce attorneys: filing a deed in the real property records conveying your ex-spouse’s interest to you. The court may have awarded the property solely to you, but the divorce decree doesn’t always operate as a deed unless it’s properly drafted and recorded or is otherwise expressly made a muniment of title. You must remember that the title company is issuing an insurance product, and their underwriters must eliminate all potential loopholes to avoid future claims. Therefore, the title company is likely to take a “belt-and-suspenders” approach to ensure that the deed transfer is official by extinguishing any homestead rights that may linger in the ex-spouse. This can typically be done with a deed from the ex-spouse to the owner-spouse signed before closing or by having the ex-spouse sign the warranty deed at closing that conveys the property to the buyer. This is known as perfecting the deed. The same goes for the buyer’s lender, if any. They need to be sure that their buyer is properly receiving title to property in which the lender has a security interest.
If you are going through a divorce and want to purchase a property before the divorce is final, you must coordinate carefully with your divorce attorney, the lender, and title company to avoid having to obtain the consent or joinder of your nearly-ex-spouse. This can get complicated.
It's Complicated
Texas law concerning homestead and community property is complicated. It combines aspects of the Family Code, Property Code, Tax Code, Estates Code, and case law. If you have particular questions about these aspects, you should consult a lawyer skilled in Texas Family Law. The bottom line: there are many valid reasons why your non-titled spouse, non-purchasing spouse, or ex-spouse may be required to sign something during your transaction. Always discuss your situation with the title company early in the process so that they can be informed and plan accordingly.
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Bart Stockton is Associate Broker (TX & OK) and Chief of Operations for Paragon. An educator at heart, Bart writes and instructs continuing education courses focusing primarily on the topics of contracts, law, ethics, and risk reduction. Nothing in this post shall constitute legal advice; consult a skilled real estate attorney. ©2025 Bart Stockton Real Estate Education. All rights reserved. Reprinted by permission.
