Does a person have ownership rights to a piece of property if they are married, but their name is not on title?
For a community property in California, it depends upon when and how their spouse acquired the property. The law asserts that all property purchased during the marriage, with income that was earned during the marriage, is community property. Both spouses own it equally, regardless of whose name is on the title deed – and while married buyers can purchase property on their own, using only their credit, income and assets to qualify for a loan, that property is deemed to be owned by both spouses jointly.
If the intention is that the property be owned only by the spouse who purchased it, then the other spouse would have to relinquish their rights to it by executing and recording both a quit claim deed and a Preliminary Change of Ownership form.
Any real estate that was owned by one spouse prior to marriage remains separate property – as is property that is inherited or gifted to one spouse. If the other spouse’s name is not on title for either of these reasons, then they neither have ownership rights nor would they be responsible for loan repayment or other liens placed on that property – even if it resulted in foreclosure.
Spouses may comingle their separate property into community property at any time, simply by transferring that property into both names jointly. Then both spouses are on title and both have equal rights and equal responsibility for it, just as they would if they had purchased it, taken on a mortgage loan for it together, and listed both of their names on title.
Let’s talk for a moment about responsibility. When a married couple acquires a home loan, both names are typically on title – and in California, when financing is used, a trust deed is recorded. The lender releases the trust deed lien, giving the borrowers free and clear ownership rights, when the loan is fully repaid.
But if the spouses acquired the home together, and one of them, for whatever reason, relinquished their ownership rights at any time after closing (with a quit claim deed and Change of Ownership form as noted above,) that spouse is still considered responsible for the loan – and any default or foreclosure would affect their credit even if their name is no longer on title.
This material is not intended to be relied upon as a statement of the law, and is not to be construed as legal, tax or investment advice. You are encouraged to consult your legal, tax or investment professional for specific advice. The material is meant for general illustration and/or informational purposes only. Although the information has been gathered from sources believed to be reliable, no representation is made as to its accuracy.