Buying a house when married means making several legal decisions before you sign anything: how you take title, whether both spouses go on the mortgage, who signs which documents at closing, and how each of those choices will affect your taxes, a possible divorce, and what happens when one of you dies. None of this is automatic, and the defaults vary by state.
How to Hold Title as a Married Couple
The names on the deed determine who legally owns the home, what happens to it when one spouse dies, and whether a creditor can reach it for one spouse’s individual debts. Married couples generally choose among three forms of ownership.
Joint Tenancy With Right of Survivorship
Each spouse holds an equal, undivided interest. When one spouse dies, the survivor automatically inherits full ownership without probate. Both owners must acquire their interest at the same time through the same deed. Joint tenancy is available in every state.
Tenancy by the Entirety
Roughly 25 states recognize tenancy by the entirety, a form available only to married couples. It carries the same right of survivorship as joint tenancy, plus a creditor-protection advantage: if only one spouse owes a debt, a creditor generally cannot force a sale of the home or place a lien on it. That protection disappears if both spouses are jointly liable for the debt, or if the couple divorces and the tenancy converts.
Community Property
Nine states use community property rules: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, almost anything either spouse earns or buys during the marriage belongs equally to both, regardless of whose name appears on the deed. Even property titled solely in one spouse’s name is presumed to be community property if it was acquired during the marriage, and rebutting that presumption takes real evidence.1Internal Revenue Service. 25.18.1 Basic Principles of Community Property Law
Property one spouse owned before the marriage, or received as a gift or inheritance, stays separate. But commingling happens easily. Using marital funds to pay the mortgage or renovate a separately owned home can create a community interest in that property, which gets messy in divorce.
Community property does not automatically include a right of survivorship unless the deed specifically says so. Without that language, a deceased spouse’s half passes through their will or through state intestacy law. Adding “with right of survivorship” to the deed combines probate avoidance with a significant tax benefit discussed further down.2Legal Information Institute (LII) / Cornell Law School. Right of Survivorship
Who Goes on the Mortgage
Applying jointly is not automatic. Whether both spouses should be on the loan depends on credit scores, income, and existing debt.
How Lenders Read Credit Scores
When both spouses apply, the lender pulls credit reports from all three bureaus for each borrower. For each person, the lender selects the median score (or the lower of two, if only two bureaus report). Then the lender takes the lowest individual score between the two borrowers and uses that as the representative score for the loan.3Fannie Mae. Determining the Credit Score for a Mortgage Loan
One weak score drags down the entire application. A couple where one spouse has a 780 and the other has a 620 gets evaluated at 620, which affects both approval odds and the interest rate offered.
Applying With One Spouse Only
If one spouse has poor credit or heavy debt, applying with only the stronger spouse’s finances can make sense. A creditor generally cannot require your spouse to co-sign if you qualify on your own.4Consumer Financial Protection Bureau. Does My Spouse Have to Co-sign My Mortgage Loan? The trade-off: the lender counts only the applying spouse’s income, which limits how large a loan you can get.
Even when only one spouse is on the mortgage, both names can still go on the deed. The non-borrowing spouse has ownership rights but no personal liability for the debt. In some states, that spouse must still sign the security instrument to waive homestead or marital property rights, even without taking on repayment.5Fannie Mae. B8-2-03, Signature Requirements for Security Instruments
Debt-to-Income Ratio
Lenders compare your total monthly debt payments to your gross monthly income. For conventional loans, Fannie Mae caps the debt-to-income ratio at 36% for manually underwritten loans, with exceptions up to 45% for borrowers with strong credit and reserves. Loans run through Fannie Mae’s automated system can be approved with ratios up to 50%.6Fannie Mae. B3-6-02, Debt-to-Income Ratios Apply jointly and the lender combines all debts from both borrowers. One spouse’s student loans, car payments, or credit card minimums count against the shared ratio even if the other spouse earns most of the household income.
Who Signs What at Closing
Closing involves a stack of documents, and which spouse signs what depends on who is on the mortgage and how title is held.
The deed transfers ownership. Names on the deed must match your chosen form of title. If you are taking title as joint tenants or tenants by the entirety, both spouses must appear on the deed.
The promissory note is your promise to repay the loan. Only the borrowers on the mortgage sign this document and take on repayment liability.
The mortgage or deed of trust secures the loan against the property. Every person with an ownership interest in the property must sign the security instrument, along with any spouse whose signature is needed under state law to waive marital property rights.5Fannie Mae. B8-2-03, Signature Requirements for Security Instruments Signing the security instrument does not make a non-borrowing spouse responsible for the loan. It simply confirms the lender has a valid lien if the borrower defaults.
If one spouse cannot attend closing, a power of attorney can allow the other to sign on their behalf. The POA must be signed before a notary while the absent spouse is still competent, and it must specifically authorize real estate transactions. Many states require the POA to be recorded in the county where the property is located. Check with your lender and title company well before closing day, because some lenders restrict or refuse POA closings.
Tax Breaks You Get as Married Homeowners
Owning a home as a married couple opens up several federal tax advantages. The details depend on how you file and how much you owe.
Mortgage Interest Deduction
If you itemize, you can deduct interest on up to $750,000 of mortgage debt filing jointly, or $375,000 each if filing separately. These limits apply to mortgages taken out after December 15, 2017. Older mortgages fall under the prior $1 million limit ($500,000 filing separately).7Internal Revenue Service. Publication 936 (2025), Home Mortgage Interest Deduction
State and Local Tax Deduction
Property taxes are deductible as part of the state and local tax (SALT) deduction. For 2026, the SALT cap is $40,000 for households with modified adjusted gross income under $500,000. Above that income threshold, the cap gradually reduces. Married couples filing separately face a $20,000 cap each. The cap and income threshold are scheduled to increase by 1% annually.
Capital Gains Exclusion When You Sell
Married couples filing jointly can exclude up to $500,000 in capital gains when selling a primary residence, compared to $250,000 for single filers. For the full exclusion, both spouses must have used the home as their primary residence for at least two of the five years before the sale, at least one spouse must meet the ownership requirement, and neither spouse can have claimed the exclusion within the prior two years.8Office of the Law Revision Counsel. 26 USC 121 – Exclusion of Gain From Sale of Principal Residence If those joint-return requirements are not fully met, each spouse can still claim their individual $250,000 exclusion based on their own ownership and use.
How Title Choice Affects Taxes When a Spouse Dies
Most couples never think about this at closing, and the financial stakes are surprisingly large. When one spouse dies, the tax basis of the home resets to fair market value for the inherited portion. How much of the home qualifies depends entirely on how you held title.
In a joint tenancy, only the deceased spouse’s half receives the stepped-up basis. The surviving spouse’s half keeps its original basis. Suppose you bought a home for $300,000 and it is worth $800,000 when one spouse dies. The surviving spouse’s new basis is $550,000: half at original cost ($150,000) plus half at fair market value ($400,000). Selling for $800,000 produces $250,000 in potential capital gains.
In a community property state, both halves receive a stepped-up basis when either spouse dies. Same numbers, but the surviving spouse’s basis becomes the full $800,000, and selling immediately produces zero capital gains. Federal tax law treats the surviving spouse’s half of community property as having been “acquired from the decedent,” which qualifies the entire property for a basis reset to fair market value.9Office of the Law Revision Counsel. 26 U.S. Code 1014 – Basis of Property Acquired From a Decedent Joint tenancy property does not receive that treatment, so only the decedent’s fractional share gets stepped up.10Internal Revenue Service. Publication 551 (12/2025), Basis of Assets
For homes that have appreciated significantly over decades of ownership, the difference between a full basis reset and a half basis reset can mean tens or hundreds of thousands of dollars in avoided capital gains tax for the surviving spouse.11Internal Revenue Service. Publication 555, Community Property
What Happens to the House in Divorce
How a court divides the marital home in divorce depends on whether you live in a community property state or an equitable distribution state.
In the nine community property states, marital assets are generally split 50/50. Each spouse is entitled to half the equity in the home, though the court can order a buyout, a forced sale, or temporary continued occupancy rather than a literal split.
The remaining states follow equitable distribution, which means “fair” rather than “equal.” Courts weigh each spouse’s income, earning potential, length of the marriage, contributions to the home (including non-financial contributions like childcare), and other factors. The result is often an uneven split.
In either system, the most common outcomes are similar. One spouse buys out the other’s share and refinances the mortgage alone. Or the home is sold and proceeds are divided. Or one spouse keeps the home temporarily, often while children are school-age, with a deferred sale ordered for later.
A word of warning about the mortgage in any divorce scenario: a quitclaim deed can remove a spouse’s name from title, but it does nothing to the loan. If both spouses signed the mortgage, the spouse who signs away ownership is still fully liable for the debt. Late payments and defaults still hit their credit. Refinancing in one spouse’s name alone, or a formal loan assumption approved by the lender, is the only way to sever that liability.
Prenuptial and Postnuptial Agreements
A prenuptial agreement (signed before marriage) or postnuptial agreement (signed after) can define exactly what happens to the house if the marriage ends, overriding state community property or equitable distribution defaults. They are especially useful for couples where one spouse brings significant assets into the marriage or contributes separate funds to the home.
For real estate, these agreements commonly address which spouse keeps the home, how equity is divided, who is responsible for mortgage payments during and after the marriage, and whether property that would otherwise be marital will be treated as separate. A spouse who uses an inheritance to make the down payment, for example, might use a postnuptial agreement to preserve that contribution as separate property.
Enforceability varies by state. Courts generally require full financial disclosure by both parties, voluntary signing without coercion, and terms that are not wildly unfair to either side. An agreement signed the night before the wedding with no independent legal advice for one spouse is far more likely to be thrown out than one negotiated months in advance with each party represented by their own attorney.