My potential clients are a married couple. The wife owned the home before the husband moved in, and he was never formally named as an owner. What rights in the property does he have?
Texas is a community-property state. Many times, one spouse will own the home before marriage as his or her separate property. After marriage, if the parties live in the home together, then notwithstanding the separate property character of the home, the non-owner spouse acquires certain homestead rights.
When taking a listing agreement on a home in that situation, you should always require both spouses to sign the listing agreement and the contract. The title company will require both spouses to execute the deed in order to extinguish the homestead rights of the non-owner spouse.
The non-owner spouse’s homestead rights are possessory in nature. Without the signature and cooperation of the non-owner spouse, the owner spouse can only transfer good title to a buyer but cannot deliver possession. Therefore, it is essential to have both spouses sign the listing agreement, the contract, the deed, and other closing documents.
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