A Change to the Rules Governing Reverse Mortgages Provides Greater Protection for Non-Borrowing Spouses | SB Estate Planning and Elder Law

A reverse mortgage is a loan that allows homeowners age 62 or older to borrow against the equity in their homes and receive a lump sum, a fixed monthly payment, or a line of credit. Reverse mortgages are often used by seniors to augment their income in retirement. Contact Santa Barbara Estate Planning and Elder Law if you have questions about whether this affects you at (805)946-1550.

Federal laws governing reverse mortgages have evolved over the years. In May, the Federal Housing Authority (FHA) issued a new rule increasing protection for non-borrowing spouses—that is, the spouses of individuals with reverse mortgages who are not named in the loan itself. Let’s take a brief look at the recent history of reverse mortgages to understand why this change is important and how it will benefit non-borrowing spouses.

In the past, if one spouse was under 62 years of age, he or she could not be named in the loan if the couple wanted to get a reverse mortgage. This had the potential for financial catastrophe. If only one spouse was on the mortgage, and that spouse passed away, the surviving spouse would have to repay the loan or be faced with eviction from the family home.

The Department of Housing and Urban Development made a change to this rule in 2014 that offered greater protection for some surviving spouses. The change stipulated that a couple with one spouse under the age of 62 could get a reverse mortgage if the underage spouse was classified as a “non-borrowing spouse.” Then, if the older spouse passed away, the non-borrowing spouse could remain in the home as long as he or she established, within 90 days, his or her “right” to do so. This right could be established in a number of ways, such as through a lease, a court order, or an ownership document.

Unfortunately, the 2014 change only applied to reverse mortgages taken out after the law became effective and it did not protect the spouses of borrowers who were forced to leave the family home due to medical problems. Do you think this change may have impacted you and your spouse? Contact our team at (805)946-1550 to make sure.

The FHA’s new rule corrects these shortcomings and increases protection for the following:

  • All non-borrowing spouses rather than just those whose reverse mortgages went into effect after 2014
  • Non-borrowing spouses of borrowers who resided in a care facility for 12 consecutive months or more
  • Spouses who were in a committed relationship with the borrower when the reverse mortgage was initiated but could not marry because of same-sex marriage prohibition… as long as the couple married before the borrower passed away

In addition, the new rule eliminates the requirement for non-borrowing spouses to show they have a title or legal right to stay in the family home.

Sadly, the new rule fails to protect spouses who weren’t married to the borrower when the reverse mortgage was initiated (with the exception, again, of same-sex couples who were unable to marry legally). Nor can the non-borrowing surviving spouse receive a reverse mortgage’s remaining balance. We at Santa Barbara Estate Planning and Elder Law can help determine if this change has impacted your estate plan. Call us at (805)946-1550.

Author Bio

Julianna Malis is the Founder and Managing Partner of Santa Barbara Estate Planning & Elder Law, a Santa Barbara estate planning law firm she founded in 2014. With more than 25 years of experience practicing law, she has dedicated her career to representing clients in a wide range of legal matters, including estate planning, elder law, Medicaid and Medicare planning, probate, and other estate planning areas.

Julianna received her Juris Doctor from the University of the Pacific — McGeorge School of Law and is a member of the California State Bar Association.

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