Short Answer

In North Carolina, when a spouse is disqualified under the Slayer statute, the decedent’s real property passes to the heirs at the moment of death. A lease the disqualified spouse signed afterward usually has no legal force against the heirs. You can either (1) give proper notice and file a summary ejectment to remove the tenant, or (2) convert the tenant to a short, written agreement with rent paid to the heirs while you file a partition action and prepare for sale.

Understanding the Problem

In North Carolina, can heirs remove a current occupant if the disqualified spouse (barred by the Slayer statute) rented out the property before the heirs sell it? Here, the spouse pled guilty, no estate is open, and the heirs want to clear title and sell the land with a manufactured home.

Apply the Law

Core rule: When someone dies intestate in North Carolina, title to their real property vests in the heirs at the time of death. A person disqualified under the Slayer statute is treated as having died just before the decedent, so they do not take any interest and cannot create binding rights in the property after death. If that person later “leases” the property, the heirs typically are not bound by that lease. The proper forum to sell co-owned heir property is a partition special proceeding with the Clerk of Superior Court in the county where the land sits. If a tenant is in possession, removal usually proceeds by summary ejectment (small claims) with required notice based on the tenancy type; if there is no landlord-tenant relationship with the heirs, an ejectment action in court may be appropriate. If the sale will occur within two years of death, creditor-protection rules can require appointing a personal representative and having the personal representative publish notice to creditors and, in some cases, join in the deed.

Key Requirements

• Heirs’ ownership: Show that the decedent died intestate and that heirs took title at death; the disqualified spouse has no post-death authority to lease.
• Lease validity: Determine if the lease was signed after death by a non-owner (usually not binding on heirs) or by the decedent before death (heirs take subject to that lease).
• Proper removal route: If there is a landlord-tenant relationship with heirs, give the required notice and file summary ejectment; if not, file an ejectment action.
• Rents and possession: Redirect rent to the heirs going forward; consider an accounting for rents collected by the wrongdoer or their tenant after death.
• Sale planning: For a sale within two years of death, open an estate, publish notice to creditors, and have the personal representative join the deed as needed to protect title.
• Partition forum: File a partition action with the Clerk of Superior Court if co-owners do not agree on the sale terms or to clear title for closing.

What the Statutes Say

• North Carolina Gen. Stat. § 31A-4 (Slayer statute effect) – Treats the disqualified person as having died before the decedent; they take nothing.
• North Carolina Gen. Stat. § 28A-15-2 (Title vests in heirs) – Real property vests in heirs at death if there is no will.
• North Carolina Gen. Stat. § 42-26 (Summary ejectment grounds) – Sets grounds for removing tenants in small claims court.
• North Carolina Gen. Stat. § 28A-17-12 (Sales/leases by heirs within two years) – Explains when heirs’ transfers within two years are valid as to creditors and the estate.

Analysis

Apply the Rule to the Facts: Because the spouse is a “slayer,” they are treated as having predeceased the decedent and cannot convey lease rights after death. Title vested in the heirs at death, so a lease the disqualified spouse signed later is generally not enforceable against them. The heirs can either negotiate a short-term agreement with the occupant (with rent paid to the heirs) or use summary ejectment after proper notice. If the heirs plan to sell within two years of death, appoint a personal representative and handle creditor notice so the closing is protected.

Process & Timing

1. Who files: Heirs. Where: Summary ejectment in small claims (through the Clerk of Superior Court) in the county where the property sits; partition with the Clerk of Superior Court; estate appointment in the same clerk’s office for the decedent’s county of domicile. What: Complaint in Summary Ejectment (for tenant removal); Petition to Partition Real Property; Application for Letters of Administration (AOC-E-202) to appoint a personal representative if needed. When: Give the tenancy’s required notice (for month-to-month, typically 7 days) before filing summary ejectment; open the estate and publish notice to creditors before a sale within two years of death.
2. Serve the tenant and attend the magistrate’s hearing (often within a few weeks). If the tenant remains, request a writ of possession. In parallel, file the partition if co-owners need court authority to sell, and record a lis pendens so buyers know a sale is pending.
3. Finalize removal, redirect rent to the heirs, and proceed to market and close. If the sale is within two years of death, have the personal representative join the deed to ensure the transfer is valid as to creditors.

Exceptions & Pitfalls

• If the decedent signed a lease before death, heirs generally take subject to that lease; removal must follow landlord-tenant law and the lease’s terms.
• Do not use self-help (changing locks or shutting off utilities). Use court process to avoid liability.
• Manufactured homes can be titled separately; confirm whether the home is real property or has a DMV title to avoid title gaps at closing.
• If selling within two years of death, coordinate with a personal representative so creditor-notice rules are satisfied and the deed is valid as to creditors.
• Service and military status matter: ensure proper service and consider Servicemembers Civil Relief Act protections if the tenant is on active duty.

Talk to a Partition Action Attorney

If you’re dealing with a tenant placed by a disqualified spouse and need to clear title and sell, our firm has experienced attorneys who can help you understand your options and 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.