Arlington, TX asked in Estate Planning and Real Estate Law for Oklahoma

Q: Does my spouse have to sign a warranty deed in OK for land that was inherited?

My parents are nearing death and closed the family trust and divided the land between me and my sister earlier this year for inheritance. No structures are on the land. My half was put in a deed of survivorship with me and my grown son. We are trying to deed 10 acres to a friend as a gift ($10). I was told my wife has to sign the warranty deed since we are married here in Oklahoma. Is this true since it was given by my parents for inheritance and has never been commingled and no improvements made? I am not sure she will sign it as she is bitter my parents didn’t list her. But they wanted it left in the family as she is my 5th wife. Help me get around this!

2 Lawyer Answers
Richard Winblad
Richard Winblad
PREMIUM
Answered
  • Estate Planning Lawyer
  • Edmond, OK
  • Licensed in Oklahoma

A: Great question:

The reason that a spouse is generally required to sign deeds that include surface interest is to protect the transferee (the person receiving the property and their lenders) from a possible spousal homestead claim. A spouse occupying property cannot be deprived of the right of occupancy even if she/he does not own an interest in the property. Even if you wife does not live on the property most title examiners require the signature to avoid such a claim. I would not advise a client to accept a deed from a married person unless their spouse also signed.

On a second issue, it probably would have been better to inherit the land instead of receiving the property as a gift. The reason is that if the property has increased in value since your parents' acquisition the you would be entitled to a stepped-up basis. This means that when sold the capital gains would be calculated on the value at the last of their death. But since they gifted it to you, the capital gains will be computed as the difference of their acquisition (purchase price or value when they inherited) and the sales price.

Anthony M. Avery
Anthony M. Avery
PREMIUM
Answered
  • Estate Planning Lawyer
  • Knoxville, TN

A: The lack of improvements mitigates against a homestead being involved. Also you and your Son may wish to execute a Quit Claim Deed, since hopefully the donee would not want to sue his donors on breach of covenant of title. If a title examiner requires the spouse's conveyance, and there is none, sell the property to someone else.

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