The matter of spousal rights in real property is an often misunderstood issue. The marital interest historically was heavily weighted toward the husband. This is no longer the case. To take care of the non-income producing spouse, or less income producing spouse, in most instances, the Lender will require both husband and wide to execute the mortgage, as concerns their primary residence. This is even the case where only one spouse is obligated under the Lender’s Note. In Alabama, where it is marital property and the couple’s primary residence, there is shared ownership. This is true even where only one party signs.

In death, it works the same way. The archaic terms of dower and curtesy existed to provide for the spouse in death. This has been abolished and replaced by the Elective Share (different subject- for another day). Important is where the spouse has not signed, their interest in the property remains; however, their ownership is vested as Tenant in Common. They hold a half interest, subject to the laws of intestate succession. Where itt is the intent of the couple for the property to be vested wholly to the surviving spouse in death, it is imperative that the Deed be prepared to provide for the spouse to hold their interest jointly with right of survivorship.