How does a family home co-owned with a former spouse transfer after death, and can I force a sale or partition? – North Carolina

Short Answer

In North Carolina, a family home co-owned with a former spouse may transfer outside probate (for example, if the deed created a survivorship form of ownership), or it may pass to the decedent’s estate/heirs (for example, if the deed created a tenancy in common). Whether a sale can be forced depends on the ownership form and who owns the current interests after death. If the decedent’s interest passed into the estate or to heirs as a co-owner share, a partition action in Superior Court can often be used to force a sale when the co-owners cannot agree.

Understanding the Problem

In North Carolina probate, the key question is: how did the deed hold title to the home at the time of death when the decedent and a former spouse both appear as owners? If the decedent’s ownership share ended automatically at death and transferred to the other co-owner, the home usually does not become an estate asset. If the decedent’s ownership share survived death, the decedent’s share may pass under a will or intestacy and the remaining co-owners may then disagree about whether to keep the property or sell it.

Apply the Law

North Carolina treats co-owned real estate differently depending on the deed language and the relationship of the owners. Some co-ownership types carry a right of survivorship (meaning the surviving owner takes the whole property automatically at death), and some do not (meaning the decedent’s share passes at death to devisees/heirs). A forced sale or partition typically belongs in a separate Superior Court partition case, although a personal representative may sometimes petition as part of an estate sale process when necessary to pay claims or expenses.

Key Requirements

Identify the deed’s form of co-ownership: The recorded deed controls whether the decedent’s share transfers automatically at death (survivorship) or passes through the estate/heirs (no survivorship).
Confirm who owns the decedent’s share after death: If the share passes through the estate, the will or intestacy rules identify who received that share (and those people become co-owners with the former spouse).
Choose the correct procedure to force a result: If co-owners cannot agree, a partition case in Superior Court can usually force a division or sale, and the personal representative may have additional tools if a sale is needed to pay estate debts or expenses.

What the Statutes Say

N.C. Gen. Stat. § 41-64 (Tenancy by the entirety; death) – Explains that entireties property belongs to the surviving spouse by survivorship at death (with limited exceptions).
N.C. Gen. Stat. § 46A-21 (Partition; who may file; parties) – Allows a joint tenant or tenant in common (and in some situations a personal representative) to petition in Superior Court to partition the property.

Analysis

Apply the Rule to the Facts: The home is “co-owned by the decedent and a former spouse with unclear ownership status,” so the first step is confirming the recorded deed and whether it includes survivorship language or reflects a form of ownership that would end at death. If the deed created survivorship, the decedent’s interest likely did not become part of the probate estate, which would limit what the estate can control. If the deed created a tenancy in common (or another non-survivorship form), the decedent’s share would pass at death to the will beneficiaries or heirs, which can create a new co-ownership group that may need partition to force a sale.

Process & Timing

Who files: A co-owner (such as an heir who received the decedent’s share) or, in some cases, the personal representative. Where: North Carolina Superior Court in the county where the property is located. What: A petition/complaint for partition that names and serves all co-owners and other required interested parties (such as lienholders). When: Typically after confirming ownership and, if an estate is open, after the personal representative evaluates whether the estate needs the property (or sale proceeds) to pay claims, expenses, or allowances.
Next step: The court determines the parties’ ownership interests and the appropriate remedy. Depending on the property and the parties’ positions, the case may proceed toward a division (if feasible) or a court-supervised sale, with timelines varying by county and by whether ownership is disputed.
Final step: After a partition sale or partition judgment, the transaction or order establishes how proceeds (or divided parcels) are distributed among co-owners, and deeds or court orders are recorded to reflect the new ownership.

Exceptions & Pitfalls

“Former spouse” can change the title analysis: A deed that was created during marriage might have been a tenancy by the entirety at the time, but divorce and later deed changes can affect what exists at the date of death. The recorded deed and any later recorded instruments usually control.
Survivorship property is often not an estate asset: If the deed created survivorship, the estate may have little or no authority to force a sale because the home passes directly to the surviving co-owner at death.
Estate administration and partition can overlap: Title to North Carolina real estate often vests in heirs/devisees at death, but a personal representative can seek control of real property when needed for administration, and certain sales require court involvement. Failing to coordinate the probate file with a partition strategy can create delay and title problems.
All parties must be joined and served: Partition requires joining all co-owners, and missing a co-owner or a key lien interest can derail the case and complicate the sale.
Personal property inside the home is separate: Disputes about household items, vehicles, and potential removal of assets should be handled through estate administration tools and, when necessary, court orders—separate from the question of who owns the real estate.

Conclusion

In North Carolina, a home co-owned with a former spouse may transfer automatically at death if the deed includes a survivorship form of ownership, but it may pass through the estate/heirs if the deed created a non-survivorship co-ownership (such as tenancy in common). A forced sale usually requires a partition case in Superior Court and depends on who owns the property interests after death. The next step is to obtain and review the recorded deed and then file a partition petition in the county where the home is located if co-owners cannot agree.

Talk to a Probate Attorney

If you’re dealing with a family home that was co-owned with a former spouse and there is disagreement about whether it passes through the estate or must be sold, our firm has experienced attorneys who can help explain the ownership rules, coordinate probate with real estate steps, and map out 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.