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Wife’s signature needed to borrow against house

May 17, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Mr. Feichthaler:

I own a home in here in Cape Coral. My third wife, Nancy, lives with me and it is our homestead. My wife is not on the title, since I purchased it before we were married. I wish to borrow money against the house (which is currently paid off) to purchase a rental property, but I prefer not to share this information with my current wife. Can I mortgage the house without her consent or knowledge?

-Brian B.

Dear Brian,

First, congratulations on owning your home with no mortgage. One of the greatest financial benefits in Florida is the protection of homestead. In nearly all cases, the equity in your home is exempt from creditor claims. I always caution clients that, before using home equity for investing purposes, that there is risk in "unprotecting" your most protected asset.

As for the mortgage, the same Florida Constitution that protects homestead also protects spousal rights in the homestead. There are powerful public policy reasons to ensure that widows and widowers are not ejected from their home when a spouse dies, so the Florida Constitution provides that the surviving spouse is entitled to a life estate. This provides the spouse a right to live in the house for life (while paying the taxes and expense of upkeep), regardless of what your will or other estate planning may say. As a result of that right, a lender will require your wife's signature and consent to place her homestead rights below the rights of the lender to potentially foreclose. Therefore, you will not be able to obtain a loan without your wife agreeing to it and signing the mortgage. Any other borrowing you may do will likely not require her signature, so if you have any assets which you can borrow against which are not your homestead, that would be a better option to accomplish your objectives.

Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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