FILED SENATE
Feb 15, 2023
GENERAL ASSEMBLY OF NORTH CAROLINA
S.B. 112
SESSION 2023 PRINCIPAL CLERK
S D
SENATE BILL DRS15039-MVz-3
Short Title: GSC Conveyances Between Spouses. (Public)
Sponsors: Senators Galey and Overcash (Primary Sponsors).
Referred to:
1 A BILL TO BE ENTITLED
2 AN ACT TO PROVIDE FOR THE EFFECT THAT CONVEYANCES OF REAL PROPERTY
3 BETWEEN SPOUSES HAVE ON CERTAIN MARITAL PROPERTY RIGHTS AND TO
4 MAKE TECHNICAL CORRECTIONS, AS RECOMMENDED BY THE GENERAL
5 STATUTES COMMISSION.
6 The General Assembly of North Carolina enacts:
7 SECTION 1.(a) G.S. 29-30 reads as rewritten:
8 "§ 29-30. Election of surviving spouse to take life interest in lieu of intestate share provided.
9 (a) Except as provided in this subsection, in lieu of the intestate share provided in
10 G.S. 29-14 or G.S. 29-21, or of the elective share provided in G.S. 30-3.1, the surviving spouse
11 of an intestate or the surviving spouse who has petitioned for an elective share is entitled to take
12 as the surviving spouse's intestate share or elective share a life estate in one third in value of all
13 the real estate of which the deceased spouse was seised and possessed of an estate of inheritance
14 at any time during coverture. The surviving spouse is not entitled to take a life estate in any of
15 the following circumstances:
16 (1) The surviving spouse has waived the surviving spouse's rights by joining with
17 the other spouse in a conveyance of the real estate.
18 (1a) The surviving spouse has waived the right to take a life estate in lieu of an
19 intestate or elective share by an express written waiver.
20 (2) The surviving spouse has waived, released, or conveyed the surviving spouse's
21 interest in the real estate in accordance with G.S. 52-10.
22 (2a) The surviving spouse has conveyed the surviving spouse's interest in the real
23 estate to the other spouse pursuant to G.S. 39-13.3 or G.S. 41-63(4) and has
24 expressly waived or released the surviving spouse's right to take a life estate
25 in the real estate in the instrument of conveyance.
26 (3) The surviving spouse was not required by law to join in a conveyance of the
27 real estate in order to bar the elective life estate.
28 (3a) The surviving spouse has executed a written declaration permitting the
29 deceased spouse to convey or encumber the real estate without the consent or
30 joinder of the surviving spouse.
31 (3b) The real estate in which the deceased spouse had an interest was either
32 apportioned to or sold to another person in a partition proceeding initiated
33 before the deceased spouse's death.
34 (4) The surviving spouse is otherwise not legally entitled to the election provided
35 in this section.
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1 (b) The surviving spouse may elect to take a life estate in the usual dwelling house
2 occupied by the surviving spouse at the time of the death of the deceased spouse if the dwelling
3 house was owned by the deceased spouse at the time of the deceased spouse's death, together
4 with the outbuildings, improvements improvements, and easements thereunto belonging or
5 appertaining, easements, and lands land upon which the dwelling house is situated and that is
6 reasonably necessary to the its use and enjoyment thereof, as well as enjoyment. The surviving
7 spouse may also elect to take a fee simple ownership in the household furnishings therein, of the
8 dwelling house, despite the fact that a life estate therein in the dwelling house might exceed the
9 fractional limitation provided for in subsection (a) of this section. If the value of a life estate in
10 the dwelling house is less than the value of a life estate in one-third in value of all the real estate,
11 the surviving spouse may elect to take a life estate in the dwelling and a life estate in such other
12 real estate as to make the aggregate life estate of the surviving spouse equal to a life estate in
13 one-third in value of all the real estate.
14 (c) The election provided for in subsection (a) of this section shall be is made by the filing
15 of a petition in accordance with Article 2 of Chapter 28A of the General Statutes (i) with the
16 clerk of the superior court of the county in which the administration of the estate is pending or
17 (ii) if no administration is pending, then with the clerk of the superior court of any county in
18 which the administration of the estate could be commenced, together with the recording of a
19 notice indicating the county and file number of the clerk's filing with the register of deeds in
20 every county where real property to be claimed under the filing is located. The election shall be
21 made prior to the following applicable periods:
22 (1) In case of testacy, the shorter of (i) within 12 months of the date of death of
23 the deceased spouse if letters testamentary are not issued within that period,
24 or (ii) within one month after the expiration of the time limit for filing a claim
25 for elective share if letters have been issued.
26 (2) In case of intestacy, the shorter of (i) within 12 months after the date of death
27 of the deceased spouse if letters of administration are not issued within that
28 period, or (ii) within one month after the expiration of the time limit for filing
29 claims against the estate, if letters have been issued.
30 (3) Repealed by Session Laws 2011-344, s. 5, effective January 1, 2012.
31 (4) If litigation that affects the share of the surviving spouse in the estate is
32 pending, including a pending petition for determination of an elective share,
33 then within such a reasonable time as may be allowed by written order of the
34 clerk of the superior court.
35 Nothing in this subsection extends the period of time for a surviving spouse to petition for an
36 elective share under Article 1A of Chapter 30 of the General Statutes.
37 (c1) The petition described in subsection (c) of this section shall do all of the following:
38 (1) Be directed to the clerk with whom it is filed.
39 (2) State that the surviving spouse making the petition elects to take under this
40 section rather than under the provisions of G.S. 29-14, 29-21, or 30-3.1, as
41 applicable.
42 (3) Set forth the names of all heirs, devisees, personal representatives
43 representatives, and all other persons in possession of or claiming an estate or
44 an interest in the property described in subsection (a) of this section.
45 (4) Request the allotment of the life estate provided for in subsection (a) of this
46 section.
47 (c2) The petition described in subsection (c) of this section may be filed in person, person
48 or by attorney authorized in a writing executed and duly acknowledged by the surviving spouse
49 and attested by at least one witness. If the surviving spouse is a minor or an incompetent, the
50 petition may be executed and filed by a general guardian or by the guardian of the person or
51 estate of the minor or incompetent spouse. If the minor or incompetent spouse has no guardian,
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1 the petition may be executed and filed by a guardian ad litem appointed by the clerk. The petition,
2 whether in person or by attorney, shall be filed as a record of the court, and a summons together
3 with a copy of the petition shall be served upon each of the interested persons named in the
4 petition, in accordance with G.S. 1A-1, Rule 4.
5 (d) In case of election to take a life estate in lieu of an intestate share or elective share, as
6 provided in either G.S. 29-14, 29-21, or 30-3.1, the clerk of superior court, with whom the
7 petition has been filed, shall summon and appoint a jury of three disinterested persons who being
8 first duly sworn shall promptly allot and set apart to the surviving spouse the life estate provided
9 for in subsection (a) of this section and make a final report of this action to the clerk.
10 (e) The final report shall be filed by the jury not more than 60 days after the their
11 summoning and appointment thereof, appointment, shall be signed by all jurors, and shall
12 describe by metes and bounds the real estate in which the surviving spouse shall have has been
13 allotted and set aside a life estate. It shall be filed as a record of court and a certified copy thereof
14 of it shall be filed and recorded in the office of the register of deeds of each county in which any
15 part of the real property of the deceased spouse, affected by the allotment, is located.
16 (f) In the election and procedure to have the life estate allotted and set apart provided for
17 in this section, the rules of procedure relating to partition proceedings apply except insofar as the
18 rules would be inconsistent with the provisions of this section. A determination of the life estate
19 under this section may be appealed in accordance with G.S. 1-301.3.
20 (g) Neither the household furnishings in the dwelling house nor the life estates estate
21 taken by election under this section are subject to the payment of debts due from the estate of the
22 deceased spouse, except those debts secured by such the property as follows:
23 (1) By a mortgage or deed of trust in which the surviving spouse has waived the
24 surviving spouse's rights by joining with the other spouse in the making
25 thereof.spouse.
26 (2) By a mortgage or deed of trust given by the deceased spouse to secure a loan,
27 the proceeds of which were used to pay all or a portion of the purchase price
28 of the encumbered real property, regardless of whether the secured party is the
29 seller of the real property or a third-party lender, or by lender.
30 (2a) By a conditional sales contract of personal property in which title is retained
31 by the vendor, made prior to or during the marriage.
32 (3) By a mortgage or deed of trust made prior to the marriage.
33 (4) By a mortgage or deed of trust constituting a lien on the property at the time
34 of its acquisition by the deceased spouse either before or during the marriage.
35 (5) By a mortgage or deed of trust on property with respect to which the elective
36 life estate provided for in this section does not apply as provided in subsection
37 (a) of this section.
38 (h) If no election is made in the manner and within the time provided for in subsection
39 (c) of this section, the surviving spouse shall be is conclusively deemed to have waived the
40 surviving spouse's right to elect to take under the provisions of this section, and any interest
41 which that the surviving spouse may have had in the real estate of the deceased spouse by virtue
42 of this section shall terminate.is terminated."
43 SECTION 1.(b) This section applies to conveyances executed before, on, or after
44 the effective date of this act.
45 SECTION 2.(a) G.S. 39-13.3 reads as rewritten:
46 "§ 39-13.3. Conveyances between husband and wife.
47 (a) A conveyance from a husband or wife to the other spouse of real property or any
48 interest therein in real property owned by the grantor alone vests such the property or interest in
49 the grantee. The conveyance does not waive or release any of the following rights or claims that
50 the grantor may have acquired by marriage in the property conveyed:
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1 (1) A right to an elective life estate under G.S. 29-30, unless the instrument of
2 conveyance expressly waives the right, as provided in G.S. 29-30(a)(2a).
3 (2) A right or claim to an equitable distribution with respect to the property under
4 G.S. 50-20. A right or claim for equitable distribution shall not be waived or
5 released in the instrument of conveyance.
6 (b) Recodified as G.S. 41-56(b) by Session Laws 2020-50, s. 1(b), effective June 30,
7 2020.
8 (c) Recodified as G.S. 41-63(4) by Session Laws 2020-50, s. 1(b), effective June 30,
9 2020.
10 (d) The joinder of the spouse of the grantor in any conveyance made by a husband or a
11 wife pursuant to the foregoing provisions of this section is not necessary.
12 (e) Any conveyance authorized by this section is subject to the provisions of G.S. 52-10
13 or 52-10.1, except that acknowledgment by the spouse of the grantor is not necessary."
14 SECTION 2.(b) G.S. 41-63 reads as rewritten:
15 "§ 41-63. Termination of tenancy by the entirety other than upon death of a spouse; effects
16 of termination.
17 Events terminating a tenancy by the entirety other than the death of a spouse and the effects
18 of termination include the following:
19 (1) The voluntary sale and conveyance of property held as tenants by the entirety
20 to a third party, including a foreclosure sale pursuant to a power of sale in a
21 deed of trust. Proceeds of the sale, including surplus funds generated from a
22 foreclosure sale, are personal property held by the spouses as tenants in
23 common.
24 (2) The voluntary partition between the spouses executing a joint instrument
25 conveying the property held as tenants by the entirety to themselves as tenants
26 in common or in severalty.
27 (3) The involuntary transfer of title of property held by spouses as tenants by the
28 entirety. The proceeds resulting from the transfer are held by the spouses as
29 tenants by the entirety. An involuntary transfer of title includes:
30 a. A sale pursuant to Article 15 of Chapter 35A of the General Statutes
31 as to an incompetent spouse.
32 b. An appropriation in a condemnation proceeding by the North Carolina
33 State Highway Commission.
34 (4) The conveyance from one spouse to the other spouse of his or her interest in
35 property held as tenants by the entirety. The conveyance vests the property or
36 interest formerly held as tenants by the entirety in the other spouse. The
37 joinder of a spouse in a conveyance made by the grantor pursuant to this
38 subdivision is not necessary, but the conveyance is subject to the provisions
39 of G.S. 52-10 or G.S. 52-10.1, except that an acknowledgment by the spouse
40 of the grantor is not necessary.necessary. The conveyance does not waive or
41 release any of the following rights or claims that the grantor may have
42 acquired by marriage in the property conveyed:
43 a. A right to an elective life estate under G.S. 29-30, unless the
44 instrument of conveyance expressly waives the right, as provided in
45 G.S. 29-30(a)(2a).
46 b. A right or claim to an equitable distribution with respect to the
47 property under G.S. 50-20. A right or claim for equitable distribution
48 shall not be waived or released in the instrument of conveyance.
49 (5) An absolute divorce of the spouses. An absolute divorce converts property
50 held as tenants by the entirety to a tenancy in common.
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1 (6) A judgment of forfeiture ordering divestment of an interest in tenancy by the
2 entirety pursuant to Chapter 75D of the General Statutes. The effect of a
3 judgment when one spouse is an innocent person as defined in G.S. 75D-5(i)
4 is governed by G.S. 75D-8(a)."
5 SECTION 2.(c) Subdivisions (b)(1), (b)(3), and (b)(4) of G.S. 50-20 are recodified
6 as subdivisions (