Can a notary public in Tennessee notarize their own spouse's signature?

Subject

Opinion No. 10-97, Notarization of Spouse's Signature, September 13, 2010

Plain-English summary

Representative W. Kent Coleman asked two related questions: whether a Tennessee notary public may notarize a spouse's signature, and whether an attorney-notary may notarize a spouse's signature on a document in a matter where the attorney-notary stands to receive a financial benefit. The AG said no to both, even though Tennessee's notary statute does not explicitly forbid the practice. The reasoning rested on Tenn. Code Ann. § 8-16-105, which requires every notary to take an oath to discharge the office "without favor or partiality," combined with the Tennessee Supreme Court's 1896 holding in Cooper v. Hamilton Perpetual Bldg. & Loan Ass'n that an officer taking an acknowledgment "should be disinterested and entirely impartial, as between the parties." A spouse cannot be impartial about a spouse, so the AG treated spousal notarization as inconsistent with the oath. The opinion was careful to note, citing Cooper, that the resulting acknowledgment is not automatically void. It is voidable if a party later proves "undue advantage, fraud, or oppression" arising out of the relationship or financial interest.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Tennessee actually prohibit notaries from notarizing spouses?

The statute didn't say so in so many words. The AG read the statute together with the oath of office and Tennessee Supreme Court precedent to reach a "should not" conclusion. The opinion also pointed out, citing scholarship, that this kind of cross-family notarization happens routinely across the country, but that the AG still treated it as improper under Tennessee law.

What happens to a document if a notary breaks this rule?

According to the opinion, the document is not "ipso facto" void. It is "voidable" in court, meaning anyone challenging it has to come forward with proof of "undue advantage, fraud, or oppression" tied to the relationship. Without that proof, the underlying document might still stand.

Why the more emphatic answer for an attorney-notary with a financial stake?

The AG treated the second question as a stronger version of the first. When the notary is not just a spouse but also has a financial interest in the matter, the impartiality problem is even clearer. The same Cooper rule applies: notarizing a document in a matter in which you have a financial interest is improper.

What was the source for the rule that notaries must be disinterested?

The AG drew on three sources: 66 C.J.S. Notaries § 21 (a notary cannot act in a matter in which the notary has a personal interest), 58 Am. Jur. 2d Notaries Public § 11 (a party to the instrument cannot act as notary), and the Tennessee Notary Public Handbook (a notary should not acknowledge the signature of someone if the notary is a party to the transaction).

Background and statutory framework

Tennessee notaries are governed by Tenn. Code Ann. §§ 8-16-101 et seq., and they must also satisfy the general public-office requirements at Tenn. Code Ann. §§ 8-18-101 et seq. Tenn. Code Ann. § 8-16-101(a) requires a notary to be a U.S. citizen or lawful permanent resident, and to be a resident of, or maintain a principal place of business in, the county electing the notary. Notaries are elected by the county legislative body and commissioned by the governor (§§ 8-16-101(a), 8-16-102). The notary's powers include acknowledging signatures, administering oaths, taking depositions, qualifying parties to bills in chancery, and taking affidavits (§ 8-16-112).

The oath required of every notary, found at Tenn. Code Ann. § 8-1-105 (and echoed at § 8-16-105), is to discharge the duties of the office "without favor or partiality, honestly, faithfully, and diligently." That phrase, the AG reasoned, supplies the impartiality requirement that bars a notary from acting in a matter involving the notary's own spouse.

The Tennessee Supreme Court's 1896 decision in Cooper v. Hamilton Perpetual Bldg. & Loan Ass'n, 97 Tenn. 285, 37 S.W. 12, supplies the doctrinal framework. Cooper held that it is "unwise and contrary to public policy" for any officer to take an acknowledgment on an instrument to which the officer is a party or in which the officer is interested. But it also drew a careful line: such acknowledgments are not "absolutely invalid and void," only "voidable" on evidence of improper conduct, bad faith, undue advantage, or oppression. State ex rel. Marquis v. U.S. Fidelity & Guar. Co., 57 Tenn. App. 662, 424 S.W.2d 199 (1966), later reaffirmed that approach.

Citations

• Tenn. Code Ann. § 8-16-101 et seq. (notaries public)
• Tenn. Code Ann. § 8-16-101(a) (eligibility and residence)
• Tenn. Code Ann. § 8-16-102 (commissioning)
• Tenn. Code Ann. § 8-16-105 (oath)
• Tenn. Code Ann. § 8-16-112 (powers)
• Tenn. Code Ann. § 8-18-101 et seq. (public office requirements)
• Tenn. Code Ann. § 8-1-105 (oath language)
• Cooper v. Hamilton Perpetual Bldg. & Loan Ass'n, 97 Tenn. 285, 37 S.W. 12 (1896)
• State ex rel. Marquis v. U.S. Fidelity & Guar. Co., 57 Tenn. App. 662, 424 S.W.2d 199 (1966)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-097.pdf

Original opinion text

Notarization of Spouse's Signature

QUESTIONS

1. Can a notary public notarize his or her spouse's signature?

2. Can a notary public who is an attorney in a civil matter notarize documents bearing his or her spouse's signature from which the attorney/notary public could potentially receive a monetary benefit?

OPINIONS

1. No. It is the opinion of this Office that a notary public is prohibited from notarizing his or her spouse's signature because of the requirement that notaries discharge the duties of office "without favor or partiality." Tenn. Code Ann. § 8-16-105. The spousal relationship prevents the notary public from being impartial in the matter. The notarization of a spouse's signature would not, however, be void per se, but it would be voidable upon evidence of undue advantage, fraud, or oppression arising out of the fact of such relationship.

2. No. It is the opinion of this Office that it is improper for a notary public to notarize a document in a matter in which he or she has a financial interest.

ANALYSIS

Notaries public are governed by Tenn. Code Ann. §§ 8-16-101 et seq. Notaries public must also meet the requirements for public office outlined in Tenn. Code Ann. §§ 8-18-101 et seq. To hold the office of notary public, a person must be a United States citizen or a legal permanent resident. Tenn. Code Ann. § 8-16-101(a). Notaries public are elected by their county legislative body and commissioned by the governor. Tenn. Code Ann. §§ 8-16-101(a), 8-16-102. At the time of election, notaries public must be residents of or have their principal place of business in the county from which they are elected. Tenn. Code Ann. § 8-16-101(a). Notaries public are required to take and subscribe "an oath to support the constitutions of this state and of the United States, and an oath that the notary will, without favor or partiality, honestly, faithfully, and diligently discharge the duties of notary public." Tenn. Code Ann. § 8-1-105. Notaries public have "the power to acknowledge signatures upon personal knowledge or satisfactory proof, to administer oaths, to take depositions, to qualify parties to bills in chancery, and to take affidavits in all cases." Tenn. Code Ann. § 8-16-112.

"The general rule is that a notary cannot certify to or act in a matter in which the notary has a personal interest . . . ." 66 C.J.S. Notaries § 21 (2010). "One who is a party to an instrument, no matter how small or nominal his interest therein, cannot act as notary public with reference thereto." 58 Am. Jur. 2d Notaries Public § 11 (2010). "A notary should not acknowledge his or her own signature nor notarize any signature if he or she is a party to the transaction or an agent of a party taking an acknowledgment." Tennessee Notary Public Handbook, at 6 (County Technical Assistance Service, Mar. 2006), available at http://tennessee.gov/sos/bus_svc/notary.htm.

The Tennessee Supreme Court has recognized that

it is unwise and contrary to public policy for any officer to take an acknowledgment to any instrument to which he is a party, or in which he is interested directly or indirectly. In either event the officer should be disinterested and entirely impartial, as between the parties.

Cooper v. Hamilton Perpetual Bldg. & Loan Ass'n, 97 Tenn. 285, 288, 37 S.W. 12, 13 (1896). The Supreme Court went on to describe the rule governing acknowledgments by notaries public who have a relationship with the signatory or an interest in the matter as follows:

[W]hile acknowledgments taken before officers who are related to either party or interested in the instruments are contrary to public policy, and by no means to be encouraged, and while the practice which has become so prevalent should be discountenanced and discontinued, still such acknowledgments are not absolutely invalid and void because of such interest or relationship, without more. Where there is no imputation or charge of improper conduct or bad faith or undue advantage arising out of such interest or relationship, the mere fact that the acknowledgment was taken before such officer would not vitiate the instrument, or render it void, when it was otherwise free from objection or criticism.

. . .

[A]cknowledgment before parties related or interested are voidable, but not ipso facto void; and, while such acknowledgments will not per se be declared void, still they are open to attack, and the court will lend a ready ear to evidence of undue advantage, fraud, or oppression arising out of the fact of such relationship or interest in the officer taking the acknowledgment.

Id., 97 Tenn. at 289, 37 S.W. at 13; see also State ex rel. Marquis v. U.S. Fidelity & Guar. Co., 57 Tenn. App. 662, 671, 424 S.W.2d 199, 203-04 (1966).

1. According to some commentators, it is not unusual for notaries public to notarize the signatures of their spouses and other family members. See, e.g., Michael L. Closen & Trevor J. Orsinger, Family Ties That Bind, and Disqualify: Toward Elimination of Family-Based Conflicts of Interest in the Provision of Notarial Services, 36 Val. U. L. Rev. 505, 510 (2002) ("Notarizations performed by notaries for their family members undoubtedly occur thousands of times a day all over the United States. Notaries regularly notarize for their spouses, domestic partners, parents, children, and other family."). The Tennessee statute governing notaries public does not contain a specific prohibition on this practice. The statute does, however, require a notary public to discharge his or her duties "without favor or partiality." Tenn. Code Ann. § 8-16-105. A notary public "should be disinterested and entirely impartial, as between the parties." Cooper, 97 Tenn. at 288, 37 S.W. at 13. A notary public cannot be disinterested and entirely impartial in a matter involving his or her spouse. Therefore, it is the opinion of this Office that a notary public should not notarize the signature of his or her spouse. As indicated in the sources cited above, however, the notarization of a spouse's signature is not per se void, but it would be subject to attack in court and voidable upon evidence of undue advantage, fraud, or oppression arising out of the fact of the notary public's relationship to the signatory.

2. The second question is whether a notary public who is an attorney in a civil matter can notarize documents bearing his or her spouse's signature from which the attorney/notary public could potentially receive a monetary benefit. In this situation, the notary public has an even clearer interest in the matter. In light of Cooper and the other sources cited above, it is the opinion of this Office that it is improper for a notary public to notarize a document in a matter in which he or she has a financial interest. Again, the notarization in such a matter would not be per se void, but it would be subject to attack in court and voidable upon evidence of undue advantage, fraud, or oppression arising out of the fact of the notary public's financial interest in the matter.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOE WHALEN
Associate Solicitor General

R. MITCHELL PORCELLO
Assistant Attorney General

Requested by:
The Honorable W. Kent Coleman
State Representative
32 Legislative Plaza
Nashville, Tennessee 37243-0149