Title Examination Standards
Chapter 1, App.
Chapter 7. Marital Interests
§7.2. Marital Interests and Marketable Title.

1. A. The body of the instrument contains the grantor's recitation to the effect that the individual grantor is unmarried; or B. The individual grantor's spouse, identified as such in the body of the instrument, subscribes the instrument as a grantor; or C. The grantee is the spouse of the individual grantor and that fact is recited by the grantor in the body of the instrument.

   Comments:

   Comment 1: There is no question that an instrument relating to the homestead is void unless both spouses subscribe it. Grenard v. McMahan, 1968 OK 75, 441 P.2d 950, Atkinson v. Barr, 1967 OK 103, 428 P.2d 316, but also see Hill v. Discover Bank, 2008 OK CIV APP 111, 213 P.3d 835. It is also settled that both spouses must execute the same instrument, as separately executed instruments will be void. Thomas v. James, 1921 OK 414, 202 P. 499. It is essential to make the distinction between a valid conveyance and a conveyance vesting marketable title when consulting this standard. This distinction is important because the impossibility of determining from the record whether or not the land is homestead, requires the examiner, for marketable title purposes, to (1) assume that all real property is homestead, and (2) consequently, always require joinder of both spouses on all conveyances. Although a deed of non-homestead real property, signed by a title-holding married person without the joinder of their spouse, will be valid as between the parties to the deed, it cannot confer marketable record title. Comment 2: While 16 O.S. §13 states that "The husband or wife may convey, mortgage or make any contract relating to any real estate, other than the homestead, belonging to him or her, as the case may be, without being joined by the other in such conveyance, mortgage or contract," joinder by both spouses must be required in all cases due to the impossibility of ascertaining from the record whether the property was or was not homestead or whether the transaction is one of those specifically permitted by statute. See 16 O.S. §§4 and 6 and Okla. Const. Art. XII, §2. A well-settled point is that one may not rely upon recitations, either in the instrument or in a separate affidavit, to the effect that property was not the homestead. Such recitation by the grantor may be strong evidence when the issue is litigated, but it cannot be relied upon for the purpose of establishing marketability. Hensley v. Fletcher, 172 Okla. 19, 44 P.2d 63 (1935).

   Comment 3: If the individual grantor is unmarried and the grantor's marital status is inadvertently omitted from an instrument, or if two grantors are married to each other and the grantors' marital status is inadvertently omitted from an instrument, a title examiner may rely on an affidavit executed and recorded pursuant to 16 O.S. § 82 which recites that the individual grantor was unmarried or that the two grantors were married to each other at the date of such conveyance.

   Comment 4: A non-owner spouse may join in a conveyance as part of a special phrase placed after the habendum clause, yet be omitted from the grantor line of a deed, and still be considered a grantor to satisfy paragraph B. of this title standard.
   Melton v. Sneed, 188 Okla. 388, 109 P. 2d 509 (1940).

Except as otherwise provided in Standard 7.1, no deed, mortgage (other than a purchase money mortgage) or other conveyance by an individual grantor shall be approved as sufficient to vest marketable title in the grantee unless:

Adopted November 4, 1983, by House of Delegates on recommendation of the 1983 Committee on Title Examination Standards, 54 O.B.J. 2379-80 (1983), and approval of the Real Property Section, November 3, 1983. Section B added to the standard by recommendation in the Report of the 1986 Title Examination Standards Committee, 57 O.B.J. 2677-78 (1986), approval of the Real Property Section, November 20, 1986, and adoption by the House of Delegates, November 21, 1986. The 2003 Report of the Title Examination Standards Committee, 74 O.B.J. 2801 (10/11/03) recommended amending this standard for clarification and to reflect the finding in Melton v. Sneed, 188 Okla. 388, 109 P.2d 509 (1940). The Real Property Section approved the recommendation on November 13, 2003, and the House of Delegates adopted the amendment on November 14, 2003, 74 O.B.J. 3231 (11/22/03). The Title Examination Standards Committee recommended a change in Comment 1 to Title Standard 7.2 to more adequately reflect the status of the law which supports that standard. The Real Property Law Section approved, November 5, 2009, and the House of Delegates adopted the proposal November 6, 2009. (superseded document available) The Title Examination Standards Sub-Committee recommended a change to the first comment of Title Standard 7.2 to more accurately reflect that the legal authority on which the standard is based. The Real Property Law Section approved, November 18, 2010, and the House of Delegates adopted the proposal on November 19, 2010. (superseded document available)

The Title Examination Standards Committee recommended an addition to the first comment to this Section to explain and clarify the reasoning and purpose of the Standard. The Real Property Law Section approved the proposal on November 13, 2014, and the House of Delegates adopted the amendment on November 14, 2014. (superseded document available)

The 2017 Title Examination Standards Sub-Committee of the Real Property Law Section recommended adding a Comment to Standard 7.1, to amend the Comments to Standard 7.2 and to amend Standard 13.7 E in order to reflect results in the holdings of Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) and Obergefell v. Hodges 576 U.S. ___ (2015) as to same sex marriages. The Real Property Section approved the proposal on November 2, 2017 and the House of Delegates adopted the amendment on November 4, 2017. (superseded document available)