When obtaining an oil and gas lease from an individual mineral owner, it is a common practice for landmen to obtain a signature on the lease not only from the record title owner but also from that person’s spouse. That is done for good reason. Given the various legal principles that may require spousal joinder – such as community property rights and homestead laws as discussed in this article – obtaining spousal joinder on a lease often is required, and is a very good precaution even in situations where it may not be required.¹

Obviously, a lease isn’t the only place where spousal joinder issues crop up. The chain of title to mineral property may include a number of deeds that were executed by individuals who held record title at the time and that were not executed by the spouses, if any, of such persons. Often there is nothing in the abstract confirming whether or not the grantor was married at the time a deed was executed. When it comes to conveyances that were executed in the past, a landman doesn’t readily have the ability to cause the grantor’s spouse to execute the deed and thereby eliminate the risk that a required spousal joinder was not obtained. So when is joinder in a conveyance by the non-record title owning spouse required?

For land in a community property state, any conveyance by a married individual without joinder of that person’s spouse raises the issue of whether any potential community property interest of a non-record title owner spouse was conveyed, or even whether the conveyance by the spouse owning record title was valid. Of the western states, Arizona, California, Idaho, Nevada, New Mexico, Oregon and Washington are community property states. Statutes in several of those states specifically require joinder of a husband and wife in execution of a conveyance of community property.² Generally speaking, when a married individual living in a community property state acquires mineral rights or other real property interests in that state using funds generated by the joint effort of both spouses, the property is community property. Both spouses have an equal, presently vested interest in such real property. On the other hand, real property interests acquired by either spouse before marriage or after entry of decree of dissolution of marriage, and real property acquired by either spouse by gift, bequest, devise or descent, is separate property. The issue of what constitutes community property or quasi-community property is state specific and fact specific and is beyond the scope of this article.

Community property issues can’t be ignored entirely with respect to real property in common law jurisdictions either. A number of western states, including Colorado,³ Montana,⁴ Utah⁵ and Wyoming,⁶ have adopted the Uniform Disposition of Community Property Rights at Death Act. Under these statutes, the community property rights of a surviving spouse that resided in a community property state are recognized as to real property located in the applicable common law state. If both spouses are living, these statutes are not a concern. However, execution by a non-record title owing spouse is needed when conveying real property in the common law state that was owned by a deceased resident of a community property state, except as to real property that is separate property under the laws of the community property state.⁷ The statutes do protect purchasers for value from a personal representative, heir or devisee of the record title holder that has apparent title to the property against claims of the surviving spouse.

Other spousal joinder requirements arise out of state laws requiring that both spouses must join in instruments affecting real property when the land is a homestead. In Montana,⁸ Nevada,⁹ South Dakota¹⁰ and Utah,¹¹ homesteads are created by a filing or a declaration in accordance with the applicable state statute, and spousal joinder is required to convey or encumber homesteads of married persons so created.¹² In other states such as Nebraska,¹³ New Mexico,¹⁴ North Dakota,¹⁵ and Wyoming,¹⁶ a homestead right can arise without the filing of a homestead certificate. In Colorado, homesteads created automatically under the statutory provisions can be conveyed or encumbered free and clear of homestead rights by the record owner alone, but if the owner and spouse file a homestead declaration, the signature of both spouses is required to convey or encumber the property.¹⁷

In states where a homestead filing is required, if the title data is sufficient to determine that there was no homestead filing, a landman or title examiner can conclude that no spousal joinder was required in a conveyance. In jurisdictions where a homestead can be created without filing, spousal joinder generally should be obtained due to the difficulty of determining whether the land falls within the statutory definition of a homestead such that spousal joinder is required.¹⁸ However, given the provisions of the various homestead statutes, an out of state owner or the owner of a severed mineral interest would not be in a position to assert a homestead claim. As a result, the lack of joinder by the spouse of the record owner on a deed conveying such an interest would not be a title defect unless spousal joinder was needed for reasons other than the homestead statute.

In addition to the statutes discussed above, most states have adopted probate laws which guarantee that a surviving spouse will receive a fraction of the total value of the spouse’s estate. These statutes also permit the surviving spouse to attack certain conveyances made prior to death if the reduced estate and other assets are not there to satisfy the survivor’s share. The most common form of forced share provision is the augmented estate provision of the Uniform Probate Code (UPC). In order to protect the surviving spouse against transfers made before death, the effect of which is to reduce the estate and therefore the statutory guaranteed share, the UPC allows augmenting the estate to include certain property dispositions made by the decedent alone during a specified period (usually two years) before death. The augmented estate provisions of the UPC have been adopted in various forms in Colorado,¹⁹ Montana,²⁰ Nebraska,²¹ North Dakota²² and Utah.²³ These statutes are relevant only as to conveyances that were made by a married record owner without spousal joinder during the specified period before his or her death, when the issue has not been rendered moot by subsequent probate or intestacy proceedings which clarify that the surviving spouse did not elect to take under the augmented estate provisions.

As the discussion above indicates, there is no simple, across-the-board answer to the question of when spousal joinder is required in a conveyance. Whether the lack of spousal joinder in a deed in the chain of title resulted in an outstanding interest that was not conveyed may depend on facts not available in an abstract examined. Clearly one needs to understand the statutes and case law of the applicable state as the starting point in making that determination.

¹If an individual executes a lease alone, the lessee frequently includes a recital stating the reason given by the lessor as to why joinder by a spouse was not needed. For example, the lease may recite that the lessor is a single person, or is a widow or widower. When the spouse of a record owner who is married does not sign a lease, the lease may recite that the lessor is dealing with his or her separate property. Inclusion of self-serving recitals such as these may make a company more comfortable in accepting a lease that has not been executed by the record owner’s spouse, but there is a risk in relying on such recitals without further confirmation since they are not proof of the facts stated. The “facts” recited may be incorrect. At most, they qualify the recited facts as prima facie evidence or create a rebuttable presumption that they are true. See, e.g., Colo. Rev. Stat. § 38-35-107 (recitals instruments recorded for 20 years are prima facie evidence of facts recited therein); S.D. Codified Laws § 43-28-19 (recitals are prima facia evidence on questions of marital status, homestead and identity when recorded); N.D. Title Standards 2-03 (permits reliance upon a recitation of single status, including widow or widower, if no evidence of marriage appears in the record).
²Ariz. Rev. Stat. Ann. § 33-452; Ida. Code § 32-912; N.M. Stat. Ann. § 40-3-13 (also applies to leases if the initial term, together with any option or extension, exceeds 5 years, or if the term is indefinite); and Rev. Code Wash. Ann. § 26.16.030(3). Under New Mexico law, for example, if a spouse fails to join in the conveyance, mortgage, assignment, or lease of community property, the instrument is void and of no effect, unless ratified by the spouse in writing. N.M. Stat. Ann. § 40-3-13; Hannah v. Tennant, 589 P.2d 1035 (N.M. 1979). In fact, an instrument purporting to convey a community property interest that is signed by only one of the spouses may not even be effective as to the spouse who signed the instrument. Either the joining or non-joining spouse can subsequently assert a claim that the conveyance was void. See Marquez v. Marquez, 513 P.2d 713 (N.M. 1973); McGrail v. Fields, 203 P.2d 1000 (N.M. 1949).
³Colo. Rev. Stat. § 15-20-101 et seq.
⁴Mont. Code Ann. § 72-9-101 et seq.
⁵Utah Code Ann. § 75-2b-101 et seq.
⁶Wyo. Stat. Ann. § 2-7-720 et seq.
⁷The statutes list rebuttable presumptions relating to community property and separate property.
⁸Mont. Code Ann. § 70-32-105.
⁹Nev. Rev. Stat. § 115.020.
¹⁰S.D. Codified Laws § 43-31-8.
¹¹Utah Code Ann. § 78B-5-504.
¹²See Mont. Code Ann. § 70-32-301; Nev. Rev. Stat. § 115.040; S.D. Codified Laws § 43-31-17; Utah Code Ann. § 78B-5-504(4).
¹³Neb. Rev. Stat. § 40-104.
¹⁴N.M. Stat. Ann. § 42-10-9.
¹⁵While N.D. Cent. Code §§ 47-18-19 through 20 provide for execution and recording of a homestead declaration, N.D. Cent. Code § 47-18-17 provides that failure to make such a declaration shall not impair the homestead right.
¹⁶Wyo. Stat. Ann. § 34-2-121 (in addition to spousal joinder, requires language stating: “Hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this state” to convey or encumber homestead). Under Wyo. Stat. Ann. § 34-8-101 et seq., a defective deed is cured by operation of law after it has been of record for 10 years, however. ¹⁷Colo. Rev. Stat. § 38-41-202.
¹⁸As noted above, homesteads created automatically in Colorado are the exception since the record owner alone can convey or encumber the property.
¹⁹Colo. Rev. Stat. § 15-11-201 et seq.
²⁰Mont. Code Ann. § 72-2-222.
²¹Neb. Rev. Stat. §§ 30-2313 – 2314 (period extended to 3 years).
²²N.D. Cent. Code § 30.1-05-01.
²³Utah Code Ann. § 75-1-201 et seq.