Jan202026
Probate Q&A Series

If my spouse died without a will, can their children claim part of our home even though we bought it during the marriage and both names are on the title? – North Carolina

Short Answer

Usually no—if the home is titled to both spouses in North Carolina, it is commonly held as tenants by the entirety, which means the surviving spouse becomes the sole owner automatically at death. In that situation, the home does not pass through intestate succession, so the deceased spouse’s children generally cannot claim a share of the house. The key is confirming how the deed is titled, because a different form of co-ownership (like tenants in common) can change the result.

Understanding the Problem

In North Carolina probate, the main question is: when a spouse dies without a will, can the deceased spouse’s children inherit part of a home that was bought during the marriage and is titled in both spouses’ names? The answer depends on how North Carolina treats the form of ownership shown on the deed and whether the home is a probate asset or passes automatically to the surviving spouse by survivorship. This issue often comes up when most assets are jointly titled, but at least one item (like a vehicle) is titled only in the deceased spouse’s name and still needs to be transferred or sold.

Apply the Law

North Carolina has two different sets of rules that can affect a home after a death without a will: (1) survivorship rules for certain kinds of jointly owned property, and (2) intestate succession rules for property that is owned by the deceased spouse alone (or owned without survivorship). If the home is held as tenants by the entirety (the default for most deeds to married couples unless the deed says otherwise), the surviving spouse takes the entire property by survivorship, and the deceased spouse’s interest is not “in the estate” to be divided among heirs. If the home is not held with survivorship (for example, as tenants in common), then the deceased spouse’s share can pass to heirs under intestate succession, which may include children.

Key Requirements

  • Confirm the deed’s form of ownership: A deed to spouses typically creates a tenancy by the entirety unless the deed clearly states a different intent.
  • Determine whether survivorship applies: If survivorship applies (as with tenancy by the entirety), the home transfers to the surviving spouse automatically at death and is generally not divided with children under intestacy.
  • Identify what is actually in the probate estate: Property titled only in the deceased spouse’s name (like a vehicle) is more likely to require an estate procedure to transfer, even when the home does not.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a marriage where the home was bought during the marriage and both spouses are on the title. In North Carolina, that deed is commonly treated as a tenancy by the entirety, which means the surviving spouse typically becomes the sole owner automatically at death, and the deceased spouse’s children generally do not inherit a share of the home through intestacy. However, the truck titled only in the deceased spouse’s name is different: it is more likely to be part of the probate estate (and also subject to the lender’s lien), so a transfer or sale often requires an estate procedure even when the house does not.

Process & Timing

  1. Who checks ownership: The surviving spouse (or counsel). Where: The county Register of Deeds where the property is located. What: Obtain and review the recorded deed to confirm whether it is tenancy by the entirety or another form of co-ownership. When: As soon as possible after death, especially before attempting a sale or refinance.
  2. Update records if needed: If the home is held as tenants by the entirety, the surviving spouse typically records evidence of the death (often a certified death certificate or other recordable document used locally) so the land records clearly show the surviving spouse as sole owner. Local recording requirements can vary by county.
  3. Handle assets titled only to the deceased spouse: For the truck titled only in the deceased spouse’s name, the usual next step is to determine whether a simplified estate procedure is available or whether an estate must be opened with the Clerk of Superior Court (Estates). The loan balance and lienholder requirements often affect whether and how the vehicle can be sold or transferred.

Exceptions & Pitfalls

  • The deed may not be tenancy by the entirety: If the deed shows a different ownership type (for example, tenants in common), the deceased spouse’s share may pass by intestacy, and children could inherit an interest alongside the surviving spouse under N.C. Gen. Stat. § 29-14.
  • “Bought during the marriage” is not the same as “passes automatically”: Titling controls probate outcomes. A jointly titled asset with survivorship can pass outside the estate, while a solely titled asset usually does not.
  • Vehicle transfers often require estate authority: Even when the home passes by survivorship, a truck titled only in the deceased spouse’s name may still require an estate procedure to sell or retitle, and the lienholder’s payoff rules can control the transaction.

Conclusion

In North Carolina, a home titled in both spouses’ names is commonly held as tenants by the entirety, which means the surviving spouse usually becomes the sole owner automatically at death and the deceased spouse’s children generally cannot claim a share of the home through intestacy. The key step is confirming the deed’s ownership language. If an asset is titled only in the deceased spouse’s name (such as a vehicle), the next step is to file the appropriate estate paperwork with the Clerk of Superior Court (Estates) to obtain authority to transfer or sell it.

Talk to a Probate Attorney

If a spouse died without a will and there are questions about whether children can claim an interest in the home or how to transfer a vehicle titled only in the deceased spouse’s name, a probate attorney can help sort out what passes automatically versus what requires an estate filing. 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: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.