Short Answer

In North Carolina, a divorce does not automatically take a name off a deed. If your parent’s ex-spouse stayed on title, they are a co-owner. You cannot unilaterally “remove” them; you either obtain a deed from them, file a partition special proceeding to force a sale or division, or have the estate’s personal representative seek a court-ordered sale that includes all co-owners. Foreclosure takes priority, so act quickly to protect equity and clear title.

Understanding the Problem

You want to know if, under North Carolina law, you can remove your parent’s ex-spouse from the deed after your parent died without a will. One key fact: the ex-spouse never signed a release and still appears on the deed. You are an heir, live out of state, some family occupies the home without paying, and a foreclosure sale is underway with upset bids.

Apply the Law

Divorce ends the marriage but does not erase a person’s deeded ownership. When a married couple owned a home and later divorce, their ownership generally converts to a tenancy in common unless they sign new deeds. When your parent died intestate, your parent’s share of any non-survivorship real estate passed directly to the heirs at death, subject to valid liens and the estate’s limited right to sell for debts. To clear the ex-spouse’s name from title, you must either: (1) get a deed from the ex-spouse; or (2) use the court process—either a partition special proceeding (filed by a co-owner) or an estate sale proceeding (filed by the personal representative) that brings all owners before the Clerk of Superior Court so the entire property can be sold and title conveyed out free of co-tenancies, with proceeds divided after liens and costs. Meanwhile, a recorded deed of trust and any foreclosure timeline control; partition will not eliminate that lien. The personal representative can also ask the clerk for an order to take possession and control of the real estate when that helps administer the estate (including arranging a sale and addressing nonpaying occupants).

Key Requirements

• Standing: A co-owner/heir may file a partition special proceeding; a personal representative may file a sale proceeding to create assets to pay estate debts.
• Forum: File with the Clerk of Superior Court in the county where the property sits. Foreclosure matters proceed separately under Chapter 45.
• Parties and Notice: Name and serve all co-owners and necessary parties; include lienholders if sale proceeds may not cover liens.
• Relief Sought: Request partition by sale (common for a single house) or an estate sale that includes a request to sell the whole property when there are undivided interests.
• Liens First: Mortgages, taxes, and costs are paid from sale proceeds before owners receive their shares.
• Timing: Foreclosure upset bids run in 10-day windows; if the final upset period closes and the deed records, title transfers to the high bidder.

What the Statutes Say

• N.C. Gen. Stat. § 28A-15-2(b) (Title to real property) – Heirs take title to a decedent’s nonsurvivorship real estate at death.
• N.C. Gen. Stat. § 28A-13-3 (Powers of personal representative) – The clerk may authorize the personal representative to take possession and control of real property for estate administration.
• N.C. Gen. Stat. § 28A-17-1 (Order to sell, lease, or mortgage real property) – Personal representative may seek a court-ordered sale of real estate to pay estate debts and claims.
• N.C. Gen. Stat. § 45-21.27 (Upset bids in foreclosure) – Explains 10-day upset bid periods after a foreclosure sale.

Analysis

Apply the Rule to the Facts: Because your parent’s ex-spouse stayed on the deed, they remain a co-tenant. Your parent’s undivided share passed to the children at death, but the recorded mortgage and tax obligations still attach. You can’t remove the ex-spouse by affidavit; you need either their deed or a court-ordered sale. Given a pending foreclosure with upset bids, a partition or estate sale will not stop the lien; instead, any court-authorized sale would pay the mortgage first, then divide any remaining proceeds among owners.

Process & Timing

1. Who files: An heir-co-owner may file a partition petition, or the personal representative may file a special proceeding to sell real estate (and can request a sale of the whole when there are undivided interests). Where: Clerk of Superior Court in the North Carolina county where the property is located. What: Verified petition identifying all co-owners, a legal description, liens, occupancy status, and requested relief (partition by sale or estate sale including undivided interests). When: Before the foreclosure sale becomes final; upset bids run in 10-day periods under statute.
2. Clerk issues summons; all co-owners and necessary parties are served. The clerk may authorize the personal representative to take possession to secure the property. If the court orders a sale, a commissioner conducts a judicial sale (public or private) with statutory upset bids; timelines vary by county and sale type.
3. After the upset-bid period closes with no new bids, the sale is finalized. The deed from the commissioner conveys good title to the buyer, which eliminates the co-tenancy (including the ex-spouse’s name). Proceeds pay costs, taxes, and the mortgage first; the balance is distributed by ownership shares or court order.

Exceptions & Pitfalls

• If the estate needs the property to pay debts, the personal representative should seek a court-ordered sale; heirs’ private sales within two years of death can be ineffective against creditors unless the personal representative joins.
• Leaving out a co-owner or necessary party can invalidate orders as to that person; ensure complete title work and proper service.
• Partition won’t wipe out a recorded deed of trust; liens are paid first from sale proceeds, or the buyer takes subject to them.
• Occupying co-owners may not owe rent absent an ouster, but courts often adjust shares for taxes, insurance, and necessary expenses paid by one co-tenant.
• Out-of-state heirs can participate, but North Carolina service and court rules still apply; local practices and sale timelines vary by county.

Talk to a Partition Action Attorney

If you’re dealing with a co-owner who won’t sign off and a foreclosure clock is ticking, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

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.