A deed is a document that shows the world that you own a piece of real estate. The deed shows who owned it before you and indicates that the prior owner has granted the interest to you. When you get married, in most states, any real estate you owned by yourself remains your individual property. To add a spouse to a house title, you can simply execute a new deed transferring title from yourself individually to yourself and your spouse jointly.
Types of Deeds
Title to real estate is determined by the laws of the state where the real estate is located; nevertheless, universally, there are two main types of deeds: warranty deeds and quitclaim deeds. These deeds both show a grant of an interest in real estate from one person or entity to another, but they are not created equal.
Quitclaim Deeds vs. Warranty Deeds
A warranty deed is a deed between two parties, usually strangers to each other, whereby the grantor (the person selling the property) promises, or warranties, to the grantee (the person buying the property) that the grantor is conveying good title, free of encumbrances and defects. For instance, in an ordinary home sale and purchase transaction, the seller must use the proceeds of the sale to pay off all mortgages, tax liens, water and sewer liens, judgment liens and anything else that clouds title, so that the buyer receives the house without any of the seller's baggage. The warranty deed is the seller's promise that title is free and clear, and also that the seller is the record owner of the property.
A quitclaim deed, on the other hand, conveys only what the grantor has. A property owner could technically execute a quitclaim deed to someone else and transfer ownership of the property without paying off the mortgage or any liens; the grantee's ownership would be subject to the liens. A grantor could also quitclaim a meaningless interest. For example, a grantor could reasonably believe he has a 50 percent ownership interest in a property and quitclaim his 50 percent interest to a grantee.
If the grantee later discovers that the grantor only had a 25 percent ownership interest, the grantee is out of luck, since a quitclaim deed contains no warranties. Quitclaim deeds are typically used for transfers between family members, including spouses.
Types of Joint Ownership
When preparing a quitclaim deed or any other type of deed, the granting language must indicate the type of ownership being conveyed when the grant is to more than one person. The property ownership is called a "tenancy" and the owners are the "tenants."
When multiple people or entities own property together, depending upon the state's law, they can own the property as either tenants in common, joint tenants or tenants by the entirety. Married couples will typically own property together as either joint tenants or tenants by the entirety, depending upon their state's law.
Joint Tenancy With Rights of Survivorship
Joint tenants with rights of survivorship own separate percentages of the same land, but when a joint tenant dies, the other tenants automatically own proportional shares of the deceased tenant's share. So if you own 25 percent of a property and your father owns 75 percent, the deed provides that you are joint tenants with rights of survivorship. If your father passes away, you will automatically become the 100 percent owner. In states that do not allow tenancy by the entirety, a married couple should make sure the deed grant creates a joint tenancy with rights of survivorship.
Tenancy by the Entirety
A tenancy by the entirety is a type of joint property ownership that is only available in some states, and each state views it a little differently. The basics, however, are the same; if a married couple takes title to property jointly as husband and wife, they own it as tenants by the entirety, which means they each own a 100 percent undivided interest in the whole.
Compare this to a joint tenancy, in which each owner is granted a percentage interest in the property. With a tenancy by the entirety, married spouses who own a house together both own 100 percent, even while they're both alive, such that creditors of one spouse cannot use the house to satisfy the debt.
In some states, a tenancy by the entirety is presumed if a deed grants the property to a married couple. Some states may require the deed to say "husband and wife" while others may require the deed to say "as tenants by the entirety." Review your own state's laws to ensure that the deed is worded correctly.
Quitclaiming Property to a Spouse
When the time comes to deed your spouse an interest in the property, you can contact an attorney to draft a deed for you, but you can also go to the county clerk's website and look for a form. The form will have blanks for you to fill in your name as grantor as well as your name and your spouse's name as grantees. You'll need to provide a dollar amount you received in exchange for a transfer (often between $1 and $10) and a legal description of the property. You'll then need to record the deed with the county clerk or county recorder's office for the county where the property sits.
Rebecca K. McDowell is an attorney focused on debts and finance. She has a B.A. in English and a J.D. She has written finance and tax articles for Zacks and eHow.