Detailed Answer

In North Carolina, married couples may hold real estate as tenants by the entirety. North Carolina General Statutes Chapter 41A governs this form of ownership. Under N.C. Gen. Stat. § 41A-1 (https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_41A/GS_41A-1.html), a tenancy by the entirety creates one unified estate between spouses. Neither spouse can partition or encumber the property without the other.

When one spouse dies, the surviving spouse automatically receives full title by right of survivorship. This transfer occurs by operation of law, so the property does not become part of the probate estate for division among heirs.

A partition action, governed by N.C. Gen. Stat. § 47-30 and following (https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_47/GS_47-30.html), allows co-owners of real property to divide or sell the land when they disagree on its use. Because a tenancy by the entirety creates a single estate, no partition action arises while both spouses hold title.

However, a partition action may become necessary in probate or post-probate circumstances if the tenancy by the entirety ends and the property becomes held by multiple owners. The most common situations include:

• Divorce or Legal Separation: Under N.C. Gen. Stat. § 41A-3, a divorce or legal separation terminates the tenancy by the entirety. The former spouses then hold the property as tenants in common. If they cannot agree on use, sale, or division, one party may file a partition action.
• Erroneous Title or Dispute: If heirs or creditors challenge the right of survivorship or claim an interest in the property after one spouse’s death, parties may need to resolve ownership through partition or declaratory judgment proceedings.
• Multiple Co-Owners After Probate: In rare cases, property titled as tenants by the entirety may mistakenly include a third party or the decedent’s estate. Once the tenancy is severed and title vests in more than one person, a partition action can divide or sell the property.

In typical probate matters, real estate held as tenants by the entirety passes entirely to the surviving spouse without any need for court-ordered partition. The surviving spouse may then choose to sell or refinance the property alone.

Key Takeaways

• Tenancy by the entirety creates one estate held jointly by spouses (N.C. Gen. Stat. § 41A-1).
• No partition action exists while the tenancy by the entirety remains intact.
• Upon a spouse’s death, title vests fully in the survivor by right of survivorship; probate generally does not affect the property.
• Partition actions become available only after the tenancy is severed—commonly by divorce or legal separation (N.C. Gen. Stat. § 41A-3) or when additional owners appear on title.
• North Carolina’s partition statutes (Chapter 47, Article 2) govern the process once co-ownership exists.

Next Steps

Determining whether you need a partition action requires careful review of how your property is titled and the status of any tenancy by the entirety. Pierce Law Group’s attorneys have extensive experience guiding families through these issues in North Carolina probate. Contact us today to discuss your situation and explore your options.

Email us at intake@piercelaw.com or call us at (919) 341-7055 to schedule a consultation.