Can a holographic will override tenancy by the entirety to transfer half a State of North Carolina marital home?
Detailed Answer
In North Carolina, spouses who hold real property together typically own it as tenants by the entirety. Under this arrangement, each spouse owns the whole property as a single legal entity with a right of survivorship. When one spouse dies, the surviving spouse automatically owns the entire property. Because tenancy by the entirety operates outside of probate, a will—even a valid holographic will—cannot defeat or override that right.
Holographic wills in North Carolina must meet strict requirements. North Carolina law recognizes a holographic will only if the decedent’s handwriting appears in the material provisions and the document is properly signed. See N.C. Gen. Stat. § 31-8-101. However, even a valid holographic will transfers only those assets that are part of the probate estate.
Tenancy by the entirety arises automatically when a married couple acquires real property jointly. Under N.C. Gen. Stat. § 39-13, a conveyance to husband and wife creates an estate by entirety unless the deed or title states otherwise. Because the decedent’s interest merges with the surviving spouse’s interest, there is no divisible one-half interest for the will to dispose of.
In practical terms, if you draft a holographic will attempting to leave one half of your marital home to someone else, the bequest fails. At your death, the surviving spouse retains full ownership through the right of survivorship. The property never enters probate, so the will never touches it.
If you wish to give away an interest in your home, you must first sever the tenancy by the entirety during your lifetime. Options include:
- Executing a quitclaim or warranty deed that conveys your interest to a third party (requires your spouse’s signature).
- Entering a written agreement with your spouse to hold title as tenants in common instead of entireties.
- Obtaining a divorce, which converts the estate by entirety into a tenancy in common by operation of law.
Once you hold an interest as a tenant in common, you can dispose of your share through a will or other estate planning tool. Until you complete one of these steps, tenancy by the entirety prevents any testamentary gift of just half the home.
Key Takeaways
- Tenancy by the entirety gives married couples an undivided interest with survivorship rights.
- A holographic will must be in the testator’s handwriting and signed to qualify under N.C. Gen. Stat. § 31-8-101.
- Property held by entirety never enters probate; it passes automatically to the surviving spouse.
- You cannot bequeath one half of an entireties property by will without first severing the tenancy.
- To sever, consider a deed, a written agreement, or divorce so the property can later pass through your will.
If you own a marital home and want to control who receives your property after you die, planning ahead is critical. At Pierce Law Group, our attorneys guide you through severing tenancy by the entirety or using other estate planning options to meet your goals. Contact us today to discuss your situation. Email us at intake@piercelaw.com or call (919) 341-7055.
