Marital Status and Title Vestings
One of the most common areas of concern in the insurance of title to residential property is that of the vesting of title, as it is affected by the marital status of the owners or prospective buyers. Although on its face, the issue would seem simple, the human condition seems to work to make it more complex all the time.
Consider the concept that a person is either married or not.Well, what about "separated?" tells a title insurer that the person is married and that there is some sort of problem between the person and his or her erstwhile spouse. Or consider the age old question of whether a person is single , unmarried ,divorced, or widowed. One of the recurring issues with which the title insurer is faced is whether the nature of the description makes a difference (it doesn't), or whether it is the number of persons on title which counts (it does).
The vesting of title , for "natural persons," may be as sole and separate property, as community property to exist, there must be a valid subsisting marriage between the parties to the purported community interest. Parties who have acquired title as community property when no valid marriage exists between them would be deemed to hold as tenants in common.
Married persons acquiring property during the marriage are presumed to have acquired as community property unless the documentation provides otherwise. If the property is to be held as separate property, the acquiescence of the spouse is generally needed, most usually in the form of a quit claim deed. The exception to this would be acquisition by gift or inheritance, which is generally accepted as being separate property unless the gift or bequest indicates otherwise. Where the spouses intend is generally accomplished by a quit claim deed from the spouse disclaiming the interest.
If you have questions or problems in this area, a discussion with your North American Title Company title officer will give you the basic information you will need for an efficient conference with your lawyer. Always consult your lawyer when dealing with matters as important as the vesting of title to your real estate.
Written by H.Collyer Church,Vice President
Underwriting Counsel, North American Title Company
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