Short Answer

In North Carolina, a surviving spouse can protect rights in the marital home by electing a life estate in the dwelling and/or filing a spousal elective share claim. If the home was owned as tenants by the entirety, it already passed to you at death and is not part of the probate estate. Deadlines matter: elective share must be filed within six months after estate letters are issued, and a life-estate election has its own short window tied to the estate’s creditor period.

Understanding the Problem

You are the surviving spouse in North Carolina asking: how can I secure my share of the marital home through probate? You still live in the home, are paying the mortgage, and the decedent’s children tried to evict you. This is about your specific options to keep living there and/or receive value from the home during the estate process.

Apply the Law

Under North Carolina law, your steps depend on how the home was titled and which spousal remedies you elect. Real property may pass outside probate by survivorship, or it may pass to heirs subject to your spousal rights. The main forum is the Clerk of Superior Court (Estates Division) in the county where the estate is administered. Core timing: the elective share petition is due within six months after letters are issued; the life-estate election follows a short timetable tied to the creditor-claim period (or within 12 months if no letters are issued).

Key Requirements

• Confirm title to the home: Determine whether the deed shows tenants by the entirety (automatic to spouse), joint tenancy with right of survivorship, or the decedent’s sole ownership.
• Elect a life estate in the dwelling: If the decedent owned the residence at death and you lived there then, you may petition for a life estate in the dwelling (plus household furnishings) instead of taking an intestate share.
• Elective share (money award): File a petition for a percentage of the decedent’s total net assets based on length of marriage; it yields a dollar award, not specific property.
• Year’s allowance (support): Request the $60,000 spousal allowance from personal property; it cannot be paid from real estate by default.
• Mind deadlines and service: Elective share requires filing within six months of letters and formal service; the life-estate election has a short window tied to the creditor period or a 12‑month outside limit if no letters.

What the Statutes Say

• N.C. Gen. Stat. § 29-30 (Spousal life estate in the dwelling) – lets a surviving spouse elect a life estate in the usual dwelling house, with special rules and timing.
• N.C. Gen. Stat. § 30-3.1 (Right to an elective share) – sets the percentage of total net assets by length of marriage.
• N.C. Gen. Stat. § 30-3.4 (Elective share procedure and timing) – requires filing within six months after letters and service on the personal representative and responsible persons.
• N.C. Gen. Stat. § 30-15 (Spousal year’s allowance) – provides a $60,000 support allowance from personal property.

Analysis

Apply the Rule to the Facts: Because you still occupy the home and the decedent’s heirs tried to evict you, first confirm title. If it was owned with you as tenants by the entirety, you already own it outright and the eviction demand lacks a probate basis. If the decedent owned it at death, you can petition to elect a life estate in the dwelling to secure your right to remain. Separately, you can pursue an elective share (money award) within six months after letters are issued and claim your spousal year’s allowance from personal property.

Process & Timing

1. Who files: Surviving spouse. Where: Clerk of Superior Court (Estates Division) in the county of estate administration. What: File AOC-E-100 (Application and Assignment of Year’s Allowance) to collect your $60,000 allowance from personal property. When: If a personal representative has been appointed, file within six months after letters; otherwise, file as soon as practicable.
2. Who files: Surviving spouse. Where: Same estate file with the Clerk. What: Petition to elect a life estate in the dwelling under § 29-30 (no preprinted AOC petition; include property description and facts showing you occupied the home and the decedent owned it at death). When: If no letters issue within 12 months, elect within that 12‑month period; if letters issue, elect within one month after the creditor-claim period ends (intestacy) or after the elective-share filing window ends (testacy). The Clerk will appoint a jury to set apart the life estate and file a report with the Register of Deeds, typically within about 60 days.
3. Who files: Surviving spouse. Where: Same estate file. What: Elective Share Petition and Estate Proceeding Summons (AOC-E-102); serve the personal representative and all responsible persons under Rule 4. When: Within six months after letters are issued. The personal representative must provide asset information within about two months; the Clerk enters an order awarding a dollar amount; the personal representative apportions liability and pays you.

Exceptions & Pitfalls

• If the deed shows tenants by the entirety or joint tenancy with right of survivorship, the home likely passed to you automatically and is not a probate asset; this still affects elective share calculations.
• Life-estate rights in the dwelling are generally not subject to ordinary unsecured estate debts, but they remain subject to valid preexisting liens (for example, a purchase-money deed of trust or a mortgage you signed).
• The year’s allowance is paid from personal property, not real estate; do not assume sale proceeds of the home will fund it absent agreement.
• Elective share requires formal service and timely filing; consider asking the Clerk for a standstill order to keep assets from being moved while your claim is pending.
• Appointment disputes over the administrator do not stop you from filing your life-estate election or elective share—file on time anyway.
• Loan paperwork and title are different: removal of a borrower’s name from a mortgage does not change who owns the home. Check the recorded deed and deed of trust to verify ownership and liens.

Talk to a Probate Attorney

If you’re dealing with securing your rights in the marital home after a spouse’s death, our firm has experienced attorneys who can help you understand your options and timelines. Call us today.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.