How do I figure out who owns what share of the property when a parent died, the surviving parent remarried, and the new spouse was added to the deed? – North Carolina

Short Answer

In North Carolina, ownership shares usually come from (1) the deed language (tenants in common vs. joint tenancy with survivorship vs. tenancy by the entirety), and (2) what happened at each death (will vs. intestate succession, and whether survivorship controlled). The practical way to figure it out is to build a timeline and “chain of title” from the recorded deeds and the estate records for each parent, then calculate each transfer step-by-step. When a surviving parent later adds a new spouse to the deed, that transfer can change who owns what and may even create survivorship rights that cut off heirs’ claims to that portion.

Understanding the Problem

In North Carolina, when a parent dies owning real estate and the surviving parent later remarries and adds the new spouse to the deed, the key question is: what ownership interest did the surviving parent actually have at the time of the remarriage, and what kind of ownership did the new deed create. A partition case depends on knowing each co-owner’s percentage share, because the court must identify the parties’ interests before dividing the property or ordering a sale. The trigger for uncertainty is usually the combination of (1) an earlier death that may have created heirs’ interests and (2) a later deed that may have created survivorship rights for the remarried couple.

Apply the Law

North Carolina ownership shares are determined by recorded title documents and, when someone dies, by the decedent’s estate plan (if any) or North Carolina intestate succession rules. The deed controls the form of co-ownership (for example, tenants in common versus a survivorship form). If the deed created a survivorship estate between spouses (tenancy by the entirety), the surviving spouse typically takes the deceased spouse’s interest automatically at death, outside of probate. In a partition action, the Superior Court (often through the clerk’s office for certain steps) generally must determine who the co-tenants are and what undivided interests they hold before the case can move to division or sale.

Key Requirements

Identify the form of title at each step: The deed language determines whether the owners held as tenants in common, joint tenants with right of survivorship, or (if married to each other) tenants by the entirety.
Confirm what transferred at each death: If the deceased owner’s interest was subject to probate, the share passes by will or by intestate succession; if survivorship applied, the interest may pass automatically to the survivor.
Track what the surviving parent could legally convey later: A surviving parent can generally deed only the interest actually owned at that time; if heirs already owned a share, adding a new spouse to the deed may not transfer the heirs’ share (but it can affect the surviving parent’s share).

What the Statutes Say

N.C. Gen. Stat. § 41-56 (Creation of tenancy by the entirety) – explains when a deed to spouses creates a tenancy by the entirety unless the deed says otherwise.
N.C. Gen. Stat. § 41-64 (Death and tenancy by the entirety) – provides that, at a spouse’s death, tenancy-by-the-entirety property belongs to the surviving spouse by survivorship (with limited exceptions).
N.C. Gen. Stat. § 29-14 (Intestate share of surviving spouse) – sets the surviving spouse’s share of real property when someone dies without a will, based on whether there are descendants.
N.C. Gen. Stat. § 29-15 (Intestate shares of heirs other than spouse) – explains how the remaining share passes to children/other heirs when there is no will.
N.C. Gen. Stat. § 41-72 (Interests in joint tenancy with right of survivorship) – states that joint tenants’ interests are generally equal unless the deed provides otherwise, and addresses how married joint tenants may be treated.

Analysis

Apply the Rule to the Facts: The property became “jointly owned” after the first parent died, which suggests the surviving parent may not have ended up with 100% ownership. If the surviving parent later remarried and added the new spouse to the deed, the deed language matters because it may have created a survivorship estate between the remarried couple for the portion the surviving parent owned. When the surviving parent later died, the ownership shares would depend on (1) what share the surviving parent still owned at that time and (2) whether that share passed by survivorship to the new spouse or through the surviving parent’s estate to heirs.

Process & Timing

Who gathers the proof: The co-owner (or counsel) typically assembles the title and estate documents. Where: Register of Deeds (for recorded deeds) and the Clerk of Superior Court, Estates Division (for estate files) in the county where the property is located and where each estate was administered. What: Recorded deeds (including the deed adding the new spouse), any recorded survivorship language, and estate documents such as wills (if any), letters/qualification, inventories, and recorded estate conveyances. When: Before filing the partition petition, because the petition should name all co-owners and state each claimed interest.
Build a timeline and do the math: Start with the deed right before the first parent’s death, identify the form of ownership, then apply the first death transfer (will/intestacy/survivorship). Next, apply the remarriage deed (what interest was conveyed, to whom, and in what form). Finally, apply the second death transfer (again, will/intestacy/survivorship). If any deed is ambiguous, the safest assumption is that the deed controls and the shares may need to be determined by the court in the partition case.
Use the partition case to confirm interests if needed: If the shares remain disputed after document review, a partition action can force all claimants into one case so the court can determine ownership interests and then decide whether to divide the land or order a sale. For a practical overview of filing, see how to start a partition action.

Exceptions & Pitfalls

Survivorship can override probate expectations: If the remarried couple held the surviving parent’s share as tenants by the entirety, that portion typically passes automatically to the new spouse at death, rather than to the surviving parent’s heirs.
“Added to the deed” does not always mean “gave away everything”: A deed might convey only the surviving parent’s interest, might reserve something, or might create a different form of co-ownership than expected. The exact granting language matters.
Heirs may already own an undivided share: If the first parent’s death left children with an immediate ownership interest, the surviving parent generally could not later deed away the children’s share without their signatures (though the surviving parent could still convey the surviving parent’s own share).
Unequal contributions usually do not change title shares by themselves: Paying taxes, insurance, or repairs may support reimbursement claims in partition, but it does not automatically change the deeded ownership percentages.
Missing parties and “unknown heirs” issues: Partition cases often stall when not all heirs are identified. For more on that step, see figuring out who all the co-owners or heirs are.

Conclusion

In North Carolina, figuring out who owns what share after a parent’s death, a remarriage, and a later deed requires a step-by-step chain-of-title review: identify the form of ownership on the deed, apply the first death transfer (will, intestate succession, or survivorship), apply the remarriage deed (what interest was conveyed and whether it created survivorship between spouses), then apply the second death transfer. The next step is to pull the recorded deeds from the Register of Deeds and the estate records from the Clerk of Superior Court and calculate each person’s undivided interest before filing the partition petition.

Talk to a Partition Action Attorney

If a co-owner is dealing with unclear heir shares after a death, remarriage, and a deed change, a partition case can require careful title work and correct party identification. Our firm has experienced attorneys who can help explain options, likely steps, 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.