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Does the husband have to sign listing paperwork if

the wife owns the property and the couple is getting divorced?

QUESTION: A prospective seller-client has asked me to list her home. She is married and getting divorced, but she is not divorced yet. She is the only party named in the deed since she bought the home before the marriage, and she says that she has a pre-nup that makes it clear that he gets nothing if the property is sold. Does the husband need to sign the listing agreement, and if we go under contract, does he have to sign the deed?

ANSWER: The pre-nuptial agreement may be sufficient, but you will have to consult with an attorney to confirm. If the pre-nup is not sufficient, you will need a quitclaim deed, free-trader agreement, or a power of attorney from the husband to the wife in order to avoid having the husband sign the listing agreement, the purchase contract, and the deed.

The revised Guidelines for Completing the Offer to Purchase and Contract (Form 2G) discuss this scenario and give some helpful background:

If Seller(s) is married, both Seller and their spouse always must sign the contract. This is true even if the Property is owned by only one spouse. The non-owner spouse holds a potential “marital life estate” and a “right to dissent from the will” under North Carolina law and must sign the deed in order for the other spouse to convey clear title. The signature of the non-owner spouse on the contract will obligate that spouse to join in signing the deed. If the married Sellers have executed and recorded a pre-nuptial agreement, post-nuptial agreement, or a free trader agreement consult a North Carolina real estate attorney to determine who must sign.

The “marital life estate” mentioned in the guidelines comes from N.C.G.S. § 29-30. As a simple example of how this statute works, pretend a husband is married, and he owned property before the marriage. The husband then sells his separate property during the marriage without his wife joining in the transaction. If the husband then dies, the wife can elect to take a life estate in her now deceased-husband’s, formerly-owned, separate property. Even though the property was owned by the husband before marriage, and even though the husband did not own the property at death, the wife never conveyed her right to a marital life estate which she obtained when she became married.

As you can see, a marital life estate under section 29-30 is not an ownership interest in property, but it is an important right that can create an encumbrance on title, even while a couple is in the process of getting a divorce.

Any time you are approached by a seller who is getting divorced, be sure to ask them whether the other spouse has signed a quitclaim deed or a power of attorney to facilitate the sale. If the answer is “no,” then you will need to consult with an attorney to see if what the seller has will be sufficient, whether that is a pre-nup agreement, post-nup agreement, or a free-trader agreement.

Note that even separation agreements and orders from the court awarding a spouse a particular property might not address the life estate election raised by section 29-30, and legal counsel may be necessary.

If you are going to engage in agency with a non-owner divorcing spouse because the owner-spouse does not have the paperwork mentioned above to avoid it, then make sure you have the non-owner spouse sign the listing agreement and the purchase contract. You should also be relatively certain that the non-owner spouse will cooperate in good faith with both you and the owner-spouse.

Divorcing couples rarely have an easy relationship. If you fail to ensure that the non-owner spouse has a direct contractual relationship with you as the agent, and with the buyer as a seller, then the owner-spouse may not have many options to make sure the non-owner spouse signs the deed at closing. The potential for breach contract claims, both as to the agency agreement and the purchase contract, are therefore essential to making sure the non-owner spouse has sufficient incentive to close, even if the divorce is (or becomes) contentious.

Release Date: 9/4/2025

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