The common “rule” when selling or transferring real property is that both spouses will need to sign the deed, even if the property was purchased prior to marriage. A deeper explanation of that topic can be found in a previous post. One potential exception, discussed previously, is when a free trader agreement is in place. Another exception is prenuptial and postnuptial agreements.
Most people know about prenuptial agreements (commonly shortened to “prenup”). Unfortunately, that knowledge is usually limited to what is seen or heard in Hollywood or pop culture references and associated with wealthy people trying to protect their fortune in the event of divorce. Ultimately, a prenuptial agreement is a contract executed prior to marriage that can be used to address a wide variety of topics, including anything from pet custody to infidelity, but it can also be a useful planning tool, especially for real estate. A postnuptial agreement operates the same as a prenuptial agreement. The only difference is evidenced by the name – it is signed after the parties are already married.
One of the main purposes of a prenup is to identify separate property, or property that will not be treated as martial/community property. As it relates to real estate, the separate property would typically be any home(s) or real property owned by either spouse prior to the marriage or that they expect to later inherit. If a prenuptial agreement is drafted properly, both spouses may not be required to sign the deed when a home is sold because the parties previously agreed that the property is excluded from the martial estate.
The closing attorney and title company will likely need to see a copy of the executed prenup (or postnup) to confirm that it excludes the property. So, if this exception is being used, be sure to have that document ready to provide before listing the home for sale. Additionally, always be sure to consult with an attorney and involve them in the drafting process – this will help to achieve the spouses’ goals and ensure validity.
Revolution Law Group is located in Greensboro, NC, and serves individuals and small businesses throughout the Triad and surrounding areas. To contact us please visit Revolution.law or call 336-333-7907.
The information included here is for informational purposes only, is not exhaustive of all considerations when creating documents, is not intended to be legal advice, and should not be relied upon for that purpose. We strongly recommend you consult with an attorney and do not attempt to create your own documents.