If a spouse is not on the note of a mortgage, they are called a Non-Purchasing Spouse (NPS). Because Texas is a community property state, a spouse (NPS) who is not on the actual mortgage of a primary dwelling still has to be on the Deed of Trust but not on the Warranty Deed or the Note. It is important to remember, however, that the non-purchasing spouse can be on the Warranty Deed if the lender is "OK" with it, even if they are not on the Mortgage Note. See below for further explanation.

On Owner Occupied Properties

Transactions involving Deeds of Trust are normally structured, at least in theory, so that the lender gives the borrower the money to buy the property; the borrower tenders the money to the seller; the seller executes a grant deed giving the property to the borrower; and the borrower immediately executes a Deed of Trust giving the property to a trustee to be held in trust for the lender. Because the Deed of Trust basically "shares" ownership between the borrower and the lender's trustee, and because Texas is a community property state, both the borrower and the spouse (even if they are not on the mortgage note) must be on the Deed of Trust.

The basic or general real estate Warranty Deed is properly defined as a legal instrument which is used to identify the legal owner of a piece of property. At the same time it states that the owner of the property has the legal right to sell it.

Because Texas is a community property state, a spouse who is not on the actual mortgage note can still be on the Warranty Deed if they so wish (but do not have to be). However, again because Texas is a community property state, even if the other spouse is not on the Warranty Deed, they would still have to sign to release property rights at closing when selling.

On Non-Owner Occupied Properties

Note that if the property is not an owner occupied (i.e., an investment property), then the non-purchasing spouse who is not on the note will also not be on the Deed of Trust or the Warranty deed either. If the property is a second home and there is an homestead already on another property, then the non-purchasing spouse who is not on the note will also not be on the Deed of Trust or the Warranty deed either.