Short Answer

Yes—but not by the administrator simply “granting” it. In North Carolina, a surviving spouse may secure lifetime occupancy by filing a statutory election for a life estate, including a special election in the marital dwelling if the spouse lived there when the decedent died and the decedent owned it. Title to real estate otherwise passes to heirs at death; the administrator can only affect real property through limited statutory processes.

Understanding the Problem

You’re asking whether, in North Carolina probate, a surviving spouse can get a legal right to stay in the home for life. The decision is whether the spouse can use probate to create “lifetime occupancy” when the decedent died intestate and the home was titled solely in the decedent’s name. The focus is on what the Clerk of Superior Court can do and what the spouse must file to protect possession.

Apply the Law

Under North Carolina law, real property passes to heirs at death, subject to the personal representative’s limited powers and the surviving spouse’s statutory rights. A surviving spouse may elect a life estate in lieu of the intestate share. A “life estate” is the right to use and enjoy property during the life of the person holding that right. A special rule lets the spouse include the usual dwelling house (with household furnishings) if the spouse lived there at the decedent’s death and the decedent owned it then. The election is made by petition in an estate proceeding before the Clerk of Superior Court; a jury allots the life estate and files a metes-and-bounds report that is recorded. The jury must file its report within 60 days of appointment.

Key Requirements

• Surviving spouse status: You must be the decedent’s surviving spouse and choose the statutory life estate instead of taking the intestate share.
• Qualifying real estate: The decedent must have owned an inheritable interest in the real property; the special “dwelling” election requires the spouse occupied the home at death and the decedent owned it then.
• File a petition: Start an estate proceeding with the Clerk of Superior Court asking to elect the life estate; the clerk appoints a jury to allot and describe the life estate.
• Record the allotment: The jury’s signed report (metes and bounds) must be filed with the register of deeds to make the life estate of record.
• Debt and lien effects: The elected life estate and household furnishings are generally not subject to unsecured estate debts, but pre‑existing liens, mortgages, property taxes, and any encumbrances you joined in remain attached.

What the Statutes Say

• North Carolina Gen. Stat. § 29-30 (Surviving spouse’s elective life estate) – Allows a spouse to elect a life estate and explains the special dwelling-house election and process.
• North Carolina Gen. Stat. § 28A-15-2(b) (Title to property at death) – Real property vests in heirs at death, subject to administration and statutory rights.
• North Carolina Gen. Stat. § 28A-17-1 (Sale of real property to pay debts) – Personal representative may seek a court‑authorized sale if needed to pay claims.
• North Carolina Gen. Stat. § 30-15 (Spousal year’s allowance) – Separate support right paid from personal property; timing rules apply.

Analysis

Apply the Rule to the Facts: Because the decedent died intestate and the home was in the decedent’s sole name, title passed to the heirs at death, subject to your rights and the estate’s needs. As the surviving spouse, you can petition to elect a life estate; if you lived in the home at death and the decedent owned it then, you can include the dwelling and household furnishings. Your elected life estate would not be exposed to general estate debts, but any recorded tax or mortgage liens and other valid encumbrances remain attached.

Process & Timing

1. Who files: The surviving spouse. Where: Clerk of Superior Court (Estate Division) in the North Carolina county where the estate is administered. What: Verified petition to elect a spousal life estate under § 29‑30. When: File within the statutory election window; act promptly to avoid waiver.
2. The clerk issues process to interested parties and appoints a jury to allot the life estate. The jury inspects/allots the parcel(s) consistent with the statute; counties vary on scheduling but expect several weeks for appointment and inspection.
3. The jury files a signed report with a metes-and-bounds description; the clerk enters an order, and a certified copy is recorded with the register of deeds. This recording makes your life estate of record and establishes your right to occupy.

Exceptions & Pitfalls

• If you did not occupy the dwelling at death, you cannot use the special dwelling-house election, though you may still elect a life estate in other qualifying real estate.
• If the decedent did not own the residence at death, the special dwelling election is unavailable.
• Pre‑existing liens (e.g., mortgages, tax liens, recorded encumbrances) and any encumbrances you signed remain on the property and can be enforced against your life estate.
• The administrator cannot unilaterally deed you a life tenancy; use the statutory election or obtain deeds from all heirs. If estate debts require liquidity, the personal representative may petition to sell real property, but elected dwelling interests are generally insulated from unsecured debts.
• Service and notice missteps, missed election windows, or failure to record the jury’s report can delay or undermine your occupancy rights.

Talk to a Probate Attorney

If you’re dealing with how to stay in a home after a spouse dies and need to elect a life estate or address liens, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at .

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.