Jan92026
Probate Q&A Series

If the surviving spouse co-owned the home with the decedent, how is that ownership treated in probate despite the prenuptial? – North Carolina

Short Answer

In North Carolina, a home that the spouses co-owned with a survivorship form of title (most commonly tenancy by the entirety) usually passes to the surviving spouse automatically at death and is not controlled by the probate estate. A prenuptial agreement often waives rights against the estate (like an elective share), but it does not automatically undo survivorship ownership that already exists in the deed. The key issue is the exact deed language and whether the prenuptial clearly waived survivorship rights or required a different title arrangement.

Understanding the Problem

In North Carolina probate, can a surviving spouse keep full ownership of a co-owned marital residence when the other spouse dies, even if a prenuptial agreement limits inheritance rights? The decision point usually turns on how the deed titled the home (for example, whether it included a right of survivorship) and what, exactly, the prenuptial agreement waived. This question often comes up when the Clerk of Superior Court sets a hearing to sort out which assets belong to the probate estate versus which assets pass outside probate.

Apply the Law

North Carolina separates (1) property that is part of the decedent’s probate estate from (2) property that passes automatically at death by operation of law. Joint ownership of a home can fall into the second category if the deed creates survivorship rights. A prenuptial agreement can waive certain spousal rights (including the elective share), but whether it affects survivorship ownership depends on the agreement’s wording and the title documents.

Key Requirements

  • How the deed is titled: The deed controls whether the decedent’s interest becomes part of the probate estate or passes automatically to the surviving spouse.
  • Whether survivorship applies: If the title includes survivorship (commonly through tenancy by the entirety for married couples), the surviving spouse typically becomes the sole owner at death without a probate transfer.
  • What the prenuptial actually waived: Many prenups waive claims against the estate (like an elective share) but do not waive survivorship rights unless the waiver is clear and the parties structured title accordingly.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts indicate the surviving spouse co-owned the residence with the decedent and a hearing is scheduled, likely to address how a prenuptial affects the surviving spouse’s rights. If the deed shows the home was held with survivorship (often as tenants by the entirety), the home typically passes to the surviving spouse outside probate, so it is not an estate asset to be distributed under a will or intestacy. In that situation, the prenuptial usually matters more for claims against probate and other assets (like elective share or allowance issues) than for the survivorship transfer itself.

Process & Timing

  1. Who files: Typically the surviving spouse (or counsel) raises the ownership issue. Where: The Clerk of Superior Court in the county where the estate is administered. What: A certified copy of the recorded deed (and any later deeds), plus the prenuptial agreement, are commonly used to show title and any waiver language. When: Before or at the scheduled hearing so the Clerk can determine what is (and is not) part of the estate.
  2. Next step: The Clerk reviews the deed language to determine whether the decedent’s interest passed automatically at death or must be administered through the estate. If the executor has already moved property, the Clerk may also address whether assets were transferred before the ownership questions were resolved.
  3. Final step: If survivorship applies, the surviving spouse typically perfects title in the public records (often by recording an affidavit of survivorship or similar instrument accepted by the Register of Deeds). If survivorship does not apply, the decedent’s interest is handled through the estate and may require a personal representative’s deed or other estate conveyance.

Exceptions & Pitfalls

  • The deed is not survivorship title: If the home was titled as “tenants in common” (or otherwise without survivorship), the decedent’s share does not automatically pass to the surviving spouse and may become a probate asset.
  • Prenup language can be broader than expected: Some agreements attempt to waive more than the elective share. Whether a waiver reaches survivorship rights can depend on how clearly it is written and whether later actions (like retitling property) match the agreement.
  • Transfers before the hearing: When an executor transfers parcels or removes personal property early, it can create disputes about what belonged to the estate, what passed outside probate, and whether the executor had authority to act without resolving competing claims first.

Conclusion

In North Carolina, co-ownership of the marital home often means the surviving spouse becomes the sole owner automatically at death if the deed includes survivorship (commonly tenancy by the entirety), and that transfer generally happens outside probate. A prenuptial agreement may waive rights like the elective share, but it does not automatically convert survivorship property into a probate asset. The practical next step is to obtain the recorded deed and present it (with the prenuptial) at the Clerk of Superior Court hearing to confirm whether the home is part of the estate.

Talk to a Probate Attorney

If a prenuptial agreement and a co-owned home are creating conflict in an estate proceeding, our firm has experienced attorneys who can help explain what passes outside probate, what the Clerk will likely focus on at the hearing, and what deadlines still apply. 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.