Understanding the Problem
The narrow question is whether a surviving spouse who now owns a home outright by tenancy by the entirety must first record a death certificate or affidavit before selling the property without title problems at closing. Here, the residence was titled to a parent and step-parent as tenants by the entirety, the step-parent has died, and the parent is now the surviving owner.
Apply the Law
Key Requirements
- Tenancy by the entirety ownership: The recorded deed must establish that the property was held by spouses as tenants by the entirety so the survivorship rule applies.
- Death of one spouse: When one spouse dies, the deceased spouse’s interest in the entirety property does not pass to heirs or through the estate. The surviving spouse owns the property by survivorship.
- Evidence for title review: The closing attorney should review the prior deed and confirm the death before certifying title. A certified death certificate is often needed for transactions involving a decedent’s property, but the reviewed statutes do not require either a death certificate or survivorship affidavit to be recorded in the real-property records before closing.
What the Statutes Say
- N.C. Gen. Stat. § 41-56 explains how North Carolina creates a tenancy by the entirety between spouses, including when a conveyance names two individuals married to each other.
- N.C. Gen. Stat. § 41-64 provides that, upon one spouse’s death, entirety property belongs to the surviving spouse by survivorship and the deceased spouse has no descendible or divisible estate in it, subject to the statute’s slayer exception.
- N.C. Gen. Stat. § 130A-99 requires county registers of deeds to preserve and index death certificates furnished by local registrars and governs access to copies and certified copies. It does not establish a requirement to record a death certificate or affidavit in the real-property records.
Analysis
Here, because the parent and step-parent held the home as tenants by the entirety, the surviving parent became the sole owner when the step-parent died. The step-parent’s heirs ordinarily do not need to join in the sale. The closing attorney should still examine the recorded deed, confirm the marriage and death, and complete the title review needed for the surviving parent’s conveyance to the buyer.
Process & Timing
- Obtain the document: Secure a certified copy of the deceased spouse’s death certificate from an authorized vital-records source. Check the names, dates, and other identifying information against the recorded deed.
- Provide it for title review: Give the certified death certificate and prior deed to the closing attorney well before closing. This allows time to confirm the tenancy by the entirety, the death, and the surviving spouse’s authority to convey the property.
- Complete the conveyance: After completing the title review and resolving any discrepancies, the closing attorney can prepare the deed from the surviving spouse to the buyer and record the closing documents in the proper order.
Exceptions & Pitfalls
- If the original deed did not create a tenancy by the entirety—for example, because the parties were not legally married when title was conveyed—survivorship may not apply, and the deceased owner’s heirs or devisees may have an interest.
- Under the slayer exception in N.C. Gen. Stat. § 41-64, a spouse who unlawfully kills the other spouse does not receive the property under the ordinary entirety-survivorship rule.
- Waiting until the day of closing to provide proof of death can delay the title review and closing preparations.
- An uncertified death certificate or a certificate containing names that do not match the deed can require corrections or additional proof.
- N.C. Gen. Stat. § 130A-99 should not be read as imposing a real-property filing requirement; it addresses the register of deeds’ preservation of and access to vital records.
Conclusion
Under North Carolina law, the surviving tenant by the entirety owns the property automatically, so probate is not required merely to transfer the deceased spouse’s interest. The reviewed statutes do not require recording a death certificate or affidavit before closing. The key threshold is confirming that the deed created a valid tenancy by the entirety. Give the prior deed and a certified death certificate to the closing attorney early, then review Clearing Title and Selling a Deceased Spouse’s North Carolina Property.
Talk to a Probate Attorney
If a North Carolina home was owned by spouses and one spouse has died, call (919) 341-7055 to request a free case evaluation about the title documents and timing for the upcoming closing.
