We hear it often, “But she ain’t on the deed. Why does she have to come in and sign?” It may well be true that she is not on the title. Even so, Mississippi law gives the spouse who is not on title what is essentially a veto over any sale or mortgage of the family home. The rule confuses people for two reasons. First, it is not intuitive that someone who owns nothing must sign to transfer title. Second, Mississippi uses the word “homestead” for three different things, and only one of them is this rule. But the rule is rooted in history and in common experience, and it is generally a good gate. A family's home should not be sold or mortgaged without both spouses knowing about it.
The rule
Mississippi Code Section 89-1-29 provides:
A conveyance, mortgage, deed of trust or other incumbrance upon a homestead exempted from execution shall not be valid or binding unless signed by the spouse of the owner if the owner is married and living with the spouse or by an attorney in fact for the spouse.
Without the required signature, the instrument is void—not voidable. Voidable means a court could set it aside. Void means it never operated at all. "The cases are legion construing [Section 89-1-29] to mean that a conveyance of homestead without a spouse joining in the execution of the deed is absolutely void." Welborn v. Lowe, 504 So. 2d 205, 207 (Miss. 1987). And the instrument is void even as to the spouse who did sign it. Id. at 207–08.
That is not to say that the non-titled spouse must actually sign the deed in all cases. Read that last clause of the statute. The non-titled spouse's signature may be given by that spouse's attorney in fact. What the statute forbids, in its final sentence, is designating the other spouse as the attorney in fact. That is discussed in more depth below because it is often misunderstood.
When the rule applies
In order for the homestead joinder requirement to apply, three conditions must exist:
- The property is homestead—owned and actually occupied as the family's residence. "To constitute a homestead there must be actual occupation and use of the premises as a home for the family." Tanner v. Tanner, 111 Miss. 460, 71 So. 749, 750 (1916).
- The owner is married.
- The spouses are living together. The statute says so expressly: it applies when "the owner is married and living with the spouse." § 89-1-29. A husband's deed signed without his wife was void where nothing showed she had abandoned the marriage or the home. Hendry v. Hendry, 300 So. 2d 147 (Miss. 1974).
If all three exist at signing, both signatures are required.
What's the purpose of this rule?
The Mississippi Supreme Court has explained that homestead joinder provisions first appeared in the Code of 1880 primarily to protect the wife in lieu of dower, which had been abolished by statute. Dower was the widow's traditional right to a share of her husband's land after his death. The basic purpose of the joinder rule, according to the court, was to prevent a husband from conveying or encumbering the homestead without his wife's consent. Grantham v. Ralle, 248 Miss. 364, 158 So. 2d 719 (1963). The statute has since been amended to protect both spouses equally.
The result is that the non-titled spouse holds an effective veto over any conveyance of the homestead, even though that spouse owns no interest in the property. Alexander v. Daniel, 904 So. 2d 172, 179 (Miss. 2005) (citing Scott v. Scott, 73 Miss. 575, 19 So. 589 (1896), and Duncan v. Moore, 67 Miss. 136, 7 So. 221 (1890)). This is sometimes described loosely as a "community property" feature, but Mississippi is not a community property state. The non-titled spouse's signature transfers nothing. It is a consent, not a conveyance. And the consent is required only for the one asset the rule protects, the home the family actually lives in.
Some confusion: three different things are loosely referred to as "homestead" in Mississippi
People often conflate three separate rules that share the same name.
1. The spousal joinder requirement—Miss. Code Ann. § 89-1-29. This is a rule about the validity of instruments. This is the rule covered by this article. This rule applies automatically. Nothing is filed, nothing is applied for, and nobody grants it to you.
2. The creditor exemption—Miss. Code Ann. § 85-3-1 et seq. This is a rule about what creditors can reach. Section 85-3-21 lets a householder hold the land and buildings owned and occupied as a residence exempt from seizure or sale under execution or attachment, capped at 160 acres and $75,000 in value. This also applies automatically on ownership plus occupancy.
3. The ad valorem tax exemption—Miss. Code Ann. § 27-33-1 et seq. This is a property tax break, and it is the only one of the three you have to ask for. You apply with the county tax assessor between January 1 and April 1. Miss. Code Ann. § 27-33-31. You have to own and occupy the home as your primary residence on January 1, and the ownership instrument must be recorded with the chancery clerk before January 7. §§ 27-33-13, 27-33-17, 27-33-19.
The three are similar concepts, but they are not the same rule. Importantly, the spousal joinder requirement and the creditor exemption homestead rules still apply even if you never apply for the tax exemption. We often hear this argument from owners who do not want to trouble their spouses with having to attend closing. Homestead status for spousal joinder purposes turns on ownership, occupancy, marriage, and cohabitation. It has nothing to do with the tax filing.
Six exceptions
The Mississippi Title Examination Standards, which the Real Property Section of The Mississippi Bar adopted in 2019 and updated in 2021, recognize five exceptions to the joinder requirement. Mississippi Title Examination Standard 15.02. A sixth route—the incompetency petition—comes from the text of § 89-1-29 itself.
Exception 1: Non-owner-occupied property
If the property is not the owner's residence, joinder is not required. The Standards accept two kinds of proof. The first is a recital in the deed or deed of trust such as:
Grantor further represents and covenants that no part of the Property, or of any adjacent land, constitutes Grantor's homestead under the constitution and statutes of the State of Mississippi.
The second is the record itself: no declaration of homestead covering the property recorded under Miss. Code Ann. § 85-3-29, and no homestead assessment for the grantor on the property, together with evidence that the grantor keeps another property as a homestead. Standard 15.02.
Exception 2: Purchase money
A deed of trust given to secure funds used to purchase a homestead is valid without the non-titled spouse's signature. Jarvis v. Armstrong, 48 So. 1 (Miss. 1909). The same holds for a deed of trust securing money advanced to the titled spouse to construct a house that then becomes the homestead. Id. This makes sense because if the couple has not bought the property yet, then it is not yet their homestead.
On that same reasoning, the exception does not apply to a couple later borrowing against a home they already own and live in. Refinances, equity loans, and cash-out loans are not purchase money. Those need the non-titled spouse's signature.
Exception 3: Inter-spousal conveyances
One spouse may convey his or her interest in the homestead to the other spouse without joinder. Ward v. Ward, 517 So. 2d 571, 573 (Miss. 1987); Smith v. Stanley, 159 Miss. 720, 132 So. 452, 454 (1931). Separately, a joint tenancy or tenancy by the entirety with right of survivorship between spouses may be terminated by a deed from one spouse to the other, without the grantee spouse joining and regardless of homestead status. Miss. Code Ann. § 89-1-7.
The exception stops at the spouse. A conveyance to anyone else—a child, a trust, a lender—needs both signatures. And note the trap Ward itself identifies: after one spouse deeds his or her interest to the other, if the grantor spouse still lives there, the grantee spouse still cannot convey to a third party alone. Ward, 517 So. 2d at 573.
Exception 4: Separated spouses living apart
Where the couple is separated and the non-titled spouse has voluntarily left the homestead with no intent to return, the titled spouse may convey alone. Sylvester v. Stevens, 191 So. 483 (Miss. 1939); Lewis v. Ladner, 172 So. 312 (Miss. 1937). The test is whether the departing spouse was away "with the mature intention not to return to it." Philan v. Turner, 13 So. 2d 819, 821 (Miss. 1943).
This is a fact exception, and it fails on the wrong facts. A spouse forced out by the other's misconduct has not abandoned anything. Scott v. Scott, 73 Miss. 575, 19 So. 589 (1896); see Welborn, 504 So. 2d at 207.
Because no one can reconstruct the parties' intent years later, the Standards require an affidavit of non-homestead executed by the non-titled spouse—the person whose rights are being given up—and recorded in the chain of title with the instrument. Standard 15.02; see Miss. Code Ann. § 89-5-8(3). The non-titled spouse is the party who must sign this affidavit. An affidavit from the titled spouse alone is self-serving, and unacceptable.
Exception 5: Voluntary abandonment for a new homestead
This applies to a situation where the family moves. Where a titled spouse acts in good faith to adopt a new homestead—and not to strip the other spouse of homestead rights—the old property loses its homestead character. Biglane v. Rawls, 153 So. 2d 665, 668 (Miss. 1963); Grantham v. Ralle, 158 So. 2d 719, 724 (Miss. 1963); Livelar v. Kepner, 146 So. 2d 346, 349–50 (Miss. 1962).
This exception is also fact-based, and it also requires a recorded affidavit from the non-titled spouse. Standard 15.02. Following the Standards' sample form, that spouse swears that: (a) the couple freely and voluntarily abandoned the old homestead together; (b) the family has secured and now occupies a new homestead; (c) the family's personal belongings have been moved to the new home; (d) no one intends to return to the old property to live; and (e) the spouse renounces any homestead rights in the old property.
Exception 6: Adjudicated incompetent spouse
Section 89-1-29 supplies a procedure for situations where the spouse is adjudicated incompetent. In these cases, the owner files a petition in chancery court alleging the spouse's incompetence, and if the court so finds, it enters a decree authorizing the owner to execute the instrument without the spouse's signature.
Powers of attorney: the attorney in fact cannot be the other spouse
Section 89-1-29 says the instrument must be signed by the spouse of the owner "or by an attorney in fact for the spouse." And the last sentence of § 89-1-29 provides that all powers of attorney authorizing a conveyance, mortgage, deed of trust, or other encumbrance upon a homestead "shall designate an attorney in fact other than the spouse." So a validly appointed agent for the non-titled spouse can sign for transfers of homestead property, but that agent cannot be the other spouse. Although a husband cannot sign for his wife under her power of attorney on their homestead, her brother, her lawyer, or her adult child can.
Dealing with this requirement in practice
In practice, there are a few rules that practitioners follow in these circumstances:
- Separation and abandonment exceptions: an affidavit of non-homestead from the non-titled spouse, recorded with the instrument. Some underwriters want the titled spouse's signature on it too. An affidavit from the titled spouse alone is rejected.
- Purchase money exception: clear recitals in both the deed and the deed of trust confirming purchase money status.
- Non-homestead property: an express covenant that no part of the property or adjacent land is homestead, checked against recorded declarations and the tax assessment.
- Incompetent spouse: the chancery court decree.
- Powers of attorney: never the spouse for an existing homestead. For a new purchase, some underwriters accept a spouse as attorney in fact on the purchase deed of trust, but only with an affidavit that the property is not yet, and will not before closing become, either spouse's homestead.
- Older deeds in the chain: the joinder Standard is aimed at the instrument being signed now. Unless the examiner knows or has record notice that the property was a homestead when an earlier deed was signed, the examiner does not have to re-verify the homestead status of every prior conveyance. Standard 15.02.
The bottom line
If married people live together in a Mississippi home, both must consent in writing before that home can be sold or mortgaged. The consent can come from the spouse or from the spouse's own attorney in fact—but not from the other spouse acting as agent, and not from a promise to sign later.
Get it wrong and the instrument is void. Title passes to no one, the mortgage secures nothing, and no court can fix it with an equitable lien. Before you sign—or accept—a deed on homestead property in Mississippi, make sure the spousal joinder question is settled. If you're unsure whether an exception applies to your situation, ask before closing, not after.
This article is general information about Mississippi law, not legal advice. Every title is different—if you have questions about a specific property, contact us.