No, Illinois is not a community property state.

In this case, because the husband is not the borrower and is not on the title to the property securing the HELOC, we believe that his signature is required only regarding any waiver of his homestead rights. However, we do recommend checking with the secondary market purchaser of the mortgage, if any, to ensure that it does not require signatures from non-titled, non-borrowing spouses on any disclosures or other documents.

Mortgage: You do not need to obtain the husband’s signature on the mortgage. Because the husband is not a joint owner of the property, you do not need his signature on the mortgage. The wife’s signature alone should suffice to convey a security interest in the house, provided that she is the sole owner.

Right of Rescission Notice: You should not provide the husband with the notice of the right of rescission. Because the husband is not an owner of the property, he is not entitled to the right of rescission. The right of rescission applies only to persons with an ownership interest in the mortgaged property.

Truth in Lending Disclosures: You do not need to provide Truth-in-Lending Act disclosures to the husband, since he is not the borrower. Regulation Z requires you to provide the required disclosures only to the “natural person to whom credit is offered or extended” (with the exception of the right of rescission notice, which is provided to anyone with an ownership interest in the mortgaged property). Because you are not extending credit to the husband, he is not entitled to the Truth-in-Lending disclosures.

Waiver of Homestead Exemption: You should obtain the husband’s signature on the waiver of his homestead exemption, if you are seeking one. Illinois law requires the property owner “and his or her spouse” to sign any waiver of homestead of exemption. 

For resources related to our guidance, please see:

• Regulation Z, 12 CFR 1026.15(a) (The right of rescission applies only to “each consumer whose ownership interest is or will be subject to the security interest . . . .”)

• Regulation Z, 12 CFR 1026.5 (“The creditor shall make the disclosures required by this subpart in writing, in a form that the consumer may keep . . . .”)

• Regulation Z, 12 CFR 1026.2(a)(11) (“Consumer means a cardholder or natural person to whom consumer credit is offered or extended. However, for purposes of rescission under §§1026.15 and 1026.23, the term also includes a natural person in whose principal dwelling a security interest is or will be retained or acquired, if that person's ownership interest in the dwelling is or will be subject to the security interest.”)

• Illinois Code of Civil Procedure, 735 ILCS 5/12-904 (“No release, waiver or conveyance of the estate so exempted shall be valid, unless the same is in writing, signed by the individual and his or her spouse, if he or she have one . . . .”)