Can I keep the house if it was in both our names but there is still a mortgage? – North Carolina

Short Answer

Often, yes. In North Carolina, if a married couple held the home as tenants by the entirety (the most common way spouses hold title together), the surviving spouse becomes the sole owner automatically at death, even if there is still a mortgage.

However, the mortgage does not disappear. The surviving spouse typically must keep making payments (or refinance later if desired), and the estate still may need probate to deal with other assets and debts.

Understanding the Problem

When a spouse dies in North Carolina without a will, the key question is whether the surviving spouse can keep the home when (1) the deed shows both spouses on title and (2) there is still a mortgage. The decision point is the type of co-ownership on the deed (for example, tenancy by the entirety versus another form of joint ownership), because that determines whether the home passes automatically to the surviving spouse or becomes part of the deceased spouse’s estate that must be shared under intestate succession.

Apply the Law

North Carolina treats jointly owned real estate differently depending on how the deed is written. If the home was owned by spouses as tenants by the entirety, the surviving spouse becomes the sole owner by survivorship at the moment of death. If the deed instead created a different form of ownership (such as a tenancy in common, or a joint tenancy without survivorship language), then the deceased spouse’s share may pass through the estate, and intestate succession rules can give part of that share to children (including children from a prior relationship). The mortgage is a separate issue: it remains a lien on the property and must still be addressed.

Key Requirements

How the deed holds title: A deed to spouses commonly creates a tenancy by the entirety, which carries survivorship. Other deed language can change that result.
Whether survivorship applies: If survivorship applies, the home generally passes outside probate; if it does not, the deceased spouse’s share can pass by intestacy.
The mortgage obligation continues: Even when the surviving spouse becomes the owner, the mortgage lien remains and payments generally must continue to avoid default and foreclosure.

What the Statutes Say

N.C. Gen. Stat. § 41-64 (Tenancy by the entirety; survivorship at death) – provides that, at a spouse’s death, property held as tenants by the entirety belongs to the surviving spouse by survivorship and is not part of the deceased spouse’s descendable estate.
N.C. Gen. Stat. § 41-71 (Creating joint tenancy with right of survivorship) – explains that a joint tenancy with right of survivorship must be expressed in the instrument and gives examples of survivorship wording.
N.C. Gen. Stat. § 29-14 (Intestate share of surviving spouse) – sets the surviving spouse’s share of real property when property passes through intestacy (which can matter if the home is not held with survivorship).

Analysis

Apply the Rule to the Facts: The facts describe a surviving spouse and a home titled in both spouses’ names with a mortgage, with the deceased spouse dying without a will and having children from a prior relationship. If the deed held the home as tenants by the entirety (common for married couples), North Carolina law generally makes the surviving spouse the sole owner automatically, and the deceased spouse’s children do not inherit an ownership share of that house through the estate. If the deed did not include survivorship (or the couple held title as tenants in common), then the deceased spouse’s share can pass through intestacy, and the children may have inheritance rights in that share under North Carolina’s intestate succession rules.

Mortgage practical point tied to ownership: Even when the surviving spouse becomes the sole owner by survivorship, the mortgage lien stays on the property. The lender can still enforce the loan terms if payments stop, so keeping the house usually means keeping the loan current while the estate’s other assets and debts are handled.

Process & Timing

Who confirms title: the surviving spouse (often with counsel). Where: the Register of Deeds in the county where the property is located, and the Clerk of Superior Court for any needed estate filing. What: review the recorded deed to confirm whether it is tenancy by the entirety or includes survivorship language; obtain certified death certificates for lender and recording needs. When: as soon as possible after death, especially if mortgage payments are due.
Address the mortgage: continue making payments and notify the servicer of the death. The lender may request documentation to recognize the surviving spouse’s authority to discuss the loan and receive account information.
Open probate if needed for other assets/debts: even if the house passes by survivorship, probate may still be necessary to handle the deceased spouse’s other property, creditor issues (such as hospital bills and credit cards), and reimbursements (for example, funeral expenses paid by the surviving spouse).

Exceptions & Pitfalls

Assuming “both names” always means survivorship: In North Carolina, the deed language matters. A deed can create tenancy in common or a joint tenancy without survivorship, which can pull the deceased spouse’s share into the estate.
Mixing up ownership and debt: Survivorship can transfer ownership to the surviving spouse, but it does not automatically eliminate the mortgage lien. Payment and communication with the servicer remain critical.
Children from a prior relationship: If the home is not survivorship property, intestate succession can give children inheritance rights in the deceased spouse’s share, which can complicate keeping or refinancing the home.
Creditor pressure and estate cash flow: Funeral expenses, medical bills, and credit cards are handled through the estate process and available assets. Paying bills personally without a plan can create reimbursement and documentation problems later.

Conclusion

In North Carolina, a surviving spouse can often keep a jointly titled home even with a mortgage, especially when the deed held the property as tenants by the entirety, because ownership passes automatically by survivorship. The mortgage lien still remains, so payments generally must stay current to avoid default. The practical next step is to confirm the deed’s ownership language and, if other assets or debts exist, file the appropriate estate paperwork with the Clerk of Superior Court promptly.

Talk to a Probate Attorney

If you’re dealing with a spouse’s death and questions about keeping a jointly owned home with a mortgage while handling debts and inheritance issues, our firm has experienced attorneys who can help explain 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.