Maryland law, for title research

Is Maryland a community property state? No: marital property, the monetary award, and when a court can move title

Every rule below is quoted from the Annotated Code of Maryland or another official source, linked and checked on the date shown. General information, not legal advice.

How does Maryland classify a married couple's property?

As marital or not, for a divorce. Section 8-201(e) of the Family Law Article defines marital property as the property, however titled, acquired by one or both parties during the marriage. It excludes property acquired before the marriage, acquired by inheritance or gift from a third party, excluded by valid agreement, or directly traceable to any of those sources.

Real estate held as tenants by the entirety is the exception to those exclusions. Section 8-201(e)(2) counts any interest in real property the parties hold by the entirety as marital property unless a valid agreement excludes it, so a house one spouse owned before the wedding and later deeded into an entireties tenancy is marital, absent such an agreement. Section 8-205(b)(9) then has the court consider each party's contribution of property described in section 8-201(e)(3), such as inherited or gifted property, to acquiring entireties real estate. A couple arriving from a community property state should ask a Maryland attorney how these rules apply.

Can a Maryland divorce court transfer title to real estate?

Only in a narrow case. Section 8-202 lets the court, on annulment or absolute divorce, resolve disputes over who owns real property, state each party's ownership interest by decree, and order a partition or a sale and division of the proceeds of property owned by both. Except as section 8-205 provides, it may not transfer ownership of property from one party to the other.

The real property section 8-205 reaches is property jointly owned by the parties and used as their principal residence when they lived together. Subject to any lien, the court may order that property or one party's interest transferred to the other party, if the receiving party obtains the other's release from any lien, or authorize one party to buy out the other. A monetary award can touch land too: section 8-205(c) lets the court reduce an award that is due and owing to a judgment, and under Courts Article section 11-402 a money judgment indexed and recorded as the Maryland Rules prescribe is a lien on the debtor's interest in land, with listed exceptions.

The Family Law sections read here, 8-201 to 8-213, do not state what a divorce alone does to an entireties tenancy, so that question is for a Maryland attorney. In search practice, a decree found in the record is reported with its stated ownership interest, partition or sale order, or transfer of the former residence.

Is Maryland a 50/50 divorce state?

The statute sets no fixed split. Section 8-205(a) says that, subject to section 8-205(b), after deciding which property is marital and its value, the court may grant a monetary award, transfer an interest in listed property, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded. Section 8-205(b) has the court consider each of eleven factors, including each party's monetary and nonmonetary contributions to the family, economic circumstances, the circumstances that contributed to the estrangement, the duration of the marriage, and the age and condition of each party.

Timing matters for the record. Section 8-203 has the court decide disputed marital property when it grants the divorce, within 90 days afterward if the decree expressly reserves that power, or later only with a reserved power, an extension granted within the 90 days, and the parties' consent.

Who keeps the family home in a Maryland divorce?

Possession and title are separate questions. Section 8-208 lets the court give one party sole possession and use of the family home, or divide it, regardless of how the home is titled, owned or leased. Section 8-201(c) defines the family home as the parties' former principal residence, still owned or leased by one or both, that is or will be the principal residence of a party and a child, and it excludes property acquired before the marriage, by inheritance or gift from a third party, or excluded by valid agreement.

That right is temporary. Section 8-210 ends a provision about the family home no later than 3 years after the divorce, and earlier if the party in possession remarries; the court then treats the home as marital property if it qualifies and adjusts the equities under section 8-205.

How do Maryland spouses hold title together?

Section 2-117 of the Real Property Article provides that no deed creates a joint tenancy unless it expressly says the property is to be held in joint tenancy. Section 4-108(a) lets an owner grant property to himself and another person as joint tenants, tenants in common or tenants by the entirety without a straw man.

For entireties property, section 4-108(b) lets both spouses acting jointly regrant it to themselves, to either of them, to themselves and others, or to either of them and another person, in joint tenancy or tenancy in common as the section states, and lets either spouse acting alone grant to the other in tenancy in severalty, all without a straw man. Family Law section 4-301(d)(2) limits such moves: a transfer of property between spouses is invalid if made in prejudice of the rights of present creditors, and a claim must be asserted within 3 years after the transfer or be barred.

On spouse signatures, the sections read here state no joinder rule. Family Law section 4-203(a) says a married woman holds her property for her separate use and may dispose of it independently, and Estates and Trusts section 3-202 abolishes dower and curtesy. Whether a spouse should sign a particular deed is for a Maryland attorney. In search practice, each deed between spouses is reported with its vesting words.

What happens to a Maryland spouse's real estate at death?

Maryland has no dower or curtesy: section 3-202 of the Estates and Trusts Article abolishes both. Without a will, section 3-102 gives the surviving spouse or registered domestic partner the entire intestate estate, one-half if there is a surviving minor child, and the first $100,000 plus one-half of the residue if there is no minor child but there is surviving issue who are not the spouse's. Section 1-301(a) says all property of a decedent passes directly to the personal representative, who holds the legal title for administration and distribution.

A surviving spouse may instead elect an elective share under section 3-403: one-third of the estate subject to election with surviving issue, one-half with none, in each case reduced by the value of all spousal benefits. The augmented estate behind that figure includes qualifying joint interests, and section 3-401(h)(2) counts one-half of the value of a tenancy by the entirety. The election is due within the later of 9 months after the death or 6 months after the first appointment of a personal representative, under section 3-407, with a good cause extension on a timely petition. Section 3-406 allows a signed waiver before or after marriage. If other sources fall short, section 3-410(b)(1)(iii) can look to recipients of other portions of the estate subject to election. What that means for a parcel is for a Maryland attorney, and the report shows any probate record it finds.

What a title search checks on a married Maryland owner

A title check before buying follows the recorded chain of title: the vesting words on each key deed, with images, any deed between the spouses, the liens of record found, and any court or probate record it finds. Whether a former spouse still holds an interest is a legal conclusion for a Maryland attorney.

The Maryland marital property rules on this page, with their sources

Sources: IRS Publication 555, Community Property; Maryland Family Law 8-201, Definitions; Maryland Family Law 8-202, Ownership of property; Maryland Family Law 8-203, Determination of marital property; Maryland Family Law 8-205, Marital property award; Maryland Family Law 8-208, Use and possession; Maryland Family Law 8-210, Duration of use and possession; Maryland Real Property 4-108, Grants to self and others; Maryland Real Property 2-117, Joint tenancy; Maryland Estates and Trusts 3-202, Dower and curtesy abolished; Maryland Estates and Trusts 3-102, Share of surviving spouse; Maryland Estates and Trusts 3-403; Maryland Estates and Trusts 3-401; Maryland Estates and Trusts 3-407; Maryland Estates and Trusts 3-406; Maryland Estates and Trusts 3-410; Maryland Estates and Trusts 1-301; Maryland Family Law 8-205; Maryland Courts and Judicial Proceedings 11-402; Maryland Family Law 4-301; Maryland Family Law 4-203. Each row links the section it summarizes.

Questions people ask

More on how Maryland property law shapes a title search: title research in Maryland.