How Does a Tenancy by the Entirety Deed Protect a Surviving Spouse’s Property Rights During Guardianship?
1. Detailed Answer
A tenancy by the entirety deed creates a single, undivided estate in real property held by married spouses. Under North Carolina law, this form of ownership carries a right of survivorship: when one spouse dies, the surviving spouse automatically owns the entire property without going through probate.
When a spouse becomes incapacitated, family or interested parties may petition the court for a guardianship over the incapacitated spouse’s person or estate. North Carolina’s guardianship statutes (Chapter 35A) govern these proceedings. A guardian of the estate gains authority to manage only the ward’s personal assets and property interests that the ward held alone.
Because tenants by the entirety creates a single estate for both spouses, the incapacitated spouse (the ward) does not hold an individual, severable interest in the property. As a result:
- The guardian cannot sell or encumber the entire property without the non-incapacitated spouse’s consent.
- The deed to tenants by the entirety remains intact during guardianship, preserving the non-ward spouse’s ownership rights.
- Any attempt to sever or convey the property by the guardian alone is invalid under N.C.G.S. § 41A-2(b).
In practical terms, this means that if a spouse becomes a ward of the court, the other spouse continues to live in, manage, or sell the property without court interference. The property remains shielded from third-party creditors of one spouse during guardianship, and the surviving spouse emerges with full title upon the ward’s death.
2. Key Takeaways
- Tenancy by the entirety creates a single estate with right of survivorship under N.C.G.S. § 41A-1 through § 41A-7 (Chapter 41A).
- A guardian of the estate may not sever or sell a tenured property without the spouse’s consent (N.C.G.S. § 35A-1205).
- The non-ward spouse retains full control and ownership rights during guardianship.
- Creditors of one spouse cannot force a sale of tenants by the entirety property to satisfy the ward’s debts.
- Upon death of one spouse, the surviving spouse obtains full title without probate delays.
If you have questions about how to structure real estate ownership to protect your family or how guardianship could affect your home, turn to Pierce Law Group. Our attorneys guide clients through deed preparation, guardianship petitions, and estate planning.
Contact us today by emailing intake@piercelaw.com or calling (919) 341-7055 to schedule a consultation.
