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We typically include the homestead waiver in our mortgage with an annotation that the non-borrowing spouse is not obligated on the note and is signing only to waive their homestead exemption. Is a separate homestead waiver document required? – IBA Compliance Connection

IBA Compliance Connection

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We typically include the homestead waiver in our mortgage with an annotation that the non-borrowing spouse is not obligated on the note and is signing only to waive their homestead exemption. Is a separate homestead waiver document required?

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No, there is no requirement that the waiver of homestead rights be separately documented outside the mortgage. The Illinois Conveyances Act makes clear that any “deed or other instrument” that contains a clause expressly “releasing or waiving the right of homestead” is sufficient, provided that the “other spouse joins in such release or waiver.”

For resources related to our guidance, please see:

  • Conveyances Act, 765 ILCS 5/27 (“No deed or other instrument shall be construed as releasing or waiving the right of homestead, unless the same shall contain a clause expressly releasing or waiving such right. And no release or waiver of the right of homestead by the husband or wife shall bind the other spouse unless such other spouse joins in such release or waiver.”)