Dec312025
Probate Q&A Series

If a house is deeded in both spouses’ names, does it automatically become the surviving spouse’s property or does it still go through probate? – North Carolina

Short Answer

In North Carolina, a house titled in both spouses’ names often passes to the surviving spouse automatically if the deed created a survivorship form of ownership—most commonly “tenants by the entirety.” In that situation, the home is not part of the deceased spouse’s probate estate, even though paperwork may still be needed to update the land records. If the deed does not include survivorship (for example, a tenancy in common), the deceased spouse’s share usually does go through probate (or ancillary probate if the property is in another state).

Understanding the Problem

In North Carolina probate, the key question is whether real estate titled in both spouses’ names passes to the surviving spouse automatically at death, or whether the deceased spouse’s interest becomes part of the estate that the Clerk of Superior Court oversees. The decision point turns on how the deed holds title between the spouses (for example, tenants by the entirety versus another form of co-ownership). This matters when an estate is open and there are multiple parcels, including some titled jointly with a spouse and others titled only in the decedent’s name, especially when a second state requires ancillary probate for out-of-state land.

Apply the Law

North Carolina recognizes different ways two people can co-own real estate, and the deed language (and the parties’ relationship) controls whether there is a right of survivorship. When spouses hold title as tenants by the entirety, North Carolina law treats the surviving spouse as owning the property automatically at the other spouse’s death, by survivorship. In contrast, if the deed creates a form of ownership without survivorship (such as a tenancy in common), the decedent’s share is typically a probate asset and passes under a will or, if there is no will, under North Carolina intestacy rules.

Key Requirements

  • How the deed holds title: The deed must create a survivorship form of ownership (most commonly tenancy by the entirety for married couples) for the property to pass automatically to the surviving spouse.
  • Marital status at death: Tenancy by the entirety is tied to marriage; if the couple was married when the deed was made and remained married at death, survivorship is usually the default outcome for entireties property.
  • No exception that breaks survivorship: Certain unusual situations can change the result, such as the “slayer” rule, or a deed that does not actually create survivorship.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Some parcels are titled jointly with the spouse and others are titled solely in the decedent’s name. For the jointly titled parcels, the deed must be reviewed to confirm whether it created tenancy by the entirety (or another survivorship form). If it did, those parcels generally pass to the surviving spouse outside probate in North Carolina, even though the estate may still need to address related issues like debts tied to the property and record updates. Parcels titled solely in the decedent’s name are typically probate assets and may require probate or ancillary probate depending on where the land is located.

Process & Timing

  1. Who files: The personal representative (executor/administrator) handles probate assets; the surviving spouse (often with counsel) typically handles survivorship-title cleanup. Where: For North Carolina probate administration, the file is maintained with the Clerk of Superior Court in the proper county. What: A deed review is the first step; then the appropriate recording or court-approved documentation is prepared to reflect the survivorship transfer (and probate filings continue for solely owned parcels). When: Title and probate steps often begin soon after death; timing can matter if a sale, refinance, or ancillary probate is pending.
  2. Next step: Separate the real estate into (a) survivorship property (often entireties) and (b) probate property (sole ownership or non-survivorship co-ownership). This avoids trying to administer non-probate property as if it were an estate asset, while still tracking it for practical issues like creditor pressure and closing requirements.
  3. Final step: For survivorship parcels, record the appropriate documents so the land records show the surviving spouse as the sole owner. For probate parcels, complete the estate administration steps through the Clerk of Superior Court and, if land is in another state, coordinate the ancillary probate required there.

Exceptions & Pitfalls

  • Deed language does not create survivorship: Not every “both spouses on the deed” situation creates tenancy by the entirety or survivorship. If the deed creates a tenancy in common (or another non-survivorship form), the decedent’s share can be a probate asset.
  • Slayer rule exception: North Carolina law has a narrow exception that can prevent the surviving spouse from taking full title by survivorship if the surviving spouse is legally treated as a “slayer.”
  • Debt and mortgage confusion: Even when the house passes outside probate by survivorship, the mortgage and other obligations do not automatically disappear. The estate and the surviving spouse may still need to sort out who pays what, and how any reimbursement or creditor claim is handled.
  • Ancillary probate misunderstanding: North Carolina probate does not control title to land located in another state. If the decedent owned out-of-state land in their sole name (or in a non-survivorship form), that other state’s ancillary probate process may still be required.
  • Recordkeeping and closing delays: Survivorship transfers often still require clean documentation for title insurance, refinancing, or sale. Waiting until a closing is scheduled can create avoidable delays.

Conclusion

In North Carolina, a house deeded in both spouses’ names usually becomes the surviving spouse’s property automatically only if the deed created a survivorship form of ownership—most commonly tenancy by the entirety—so it does not pass through probate. If the deed does not include survivorship, the deceased spouse’s share typically becomes part of the probate estate (and may require ancillary probate if the land is out of state). The next step is to obtain and review the recorded deed and confirm the form of title before filing any transfer documents with the Register of Deeds.

Talk to a Probate Attorney

If a family is dealing with jointly titled real estate, solely owned parcels, and possible ancillary probate, our firm has experienced attorneys who can help sort out what passes outside probate, what must be administered through the Clerk of Superior Court, and what paperwork is needed to clear title. 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.