PRESERVE TENANCY BY THE ENTIRETY.

View NCGA Bill Details2017-2018 Session
House Bill 227 (Public) Filed Wednesday, March 1, 2017
AN ACT TO MAKE CONFORMING AMENDMENTS TO CLARIFY THAT TENANCY BY THE ENTIRETY IS PRESERVED IN THIS STATE IN LIGHT OF THE UNITED STATES SUPREME COURT DECISION IN OBERGEFELL V. HODGES, AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION, AND TO MAKE OTHER TECHNICAL, CLARIFYING, AND OTHER SIMILAR AMENDMENTS TO THE LAWS RELATING TO PROPERTY CONVEYED BY ONE SPOUSE OR BETWEEN SPOUSES.
Intro. by Davis.

Status: Re-ref Com On Rules, Calendar, and Operations of the House (House Action) (Apr 25 2017)

SOG comments (1):

Long Title Change

House committee substitute to the 1st edition made changes to the long title. The original title is as follows:

AN ACT TO MAKE CONFORMING AMENDMENTS TO CLARIFY THAT TENANCY BY THE ENTIRETY IS PRESERVED IN THIS STATE IN LIGHT OF THE UNITED STATES SUPREME COURT DECISION IN OBERGEFELL V. HODGES, AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.

H 227

Bill Summaries:

  • Summary date: Apr 19 2017 - More information

    House committee substitute makes the following changes to the 1st edition.

    Amends the long title.

    Makes organizational changes.

    Amends GS 39-13.7 (Tenancy by the entireties trusts in real property). Clarifies that property held by two married individuals as a tenancy by the entirety and conveyed to a joint trust, or in equal shares to two separate trusts, is no longer held by the grantors as tenants by the entirety. Provides that notice that the real property held in trust receives immunity from the claims of separate creditors may be given in a statement in the conveyance of the tenancy by the entirety real property to the trust, that the real property is held under this statute and that as of the date of conveyance, the requirements of the statute are met. Authorizes a person entering a transaction involving real property held in trust under this statute to request confirmation from the trustee that the requirements of the statute providing immunity from the claims of separate creditors are met at the time of the transaction.

    Amends GS 29-30 (Election of surviving spouse to take life interest in lieu of intestate share provided). Clarifies that the elective share of a life estate in one-third of the value of all of the deceased spouse's real estate is subject to the exceptions listed in subsection (a). Amends the listed exceptions as follows: (1) provides a further exception when the surviving spouse has waived the right to take a life estate in lieu of an intestate or elective share by an express written waiver thereof; (2) provides an exception when the surviving spouse has waived, released, or conveyed (was, released or quitclaimed) their interest in the real estate; (3) provides an exception when the surviving spouse has executed a written declaration permitting the deceased spouse to convey or encumber the property without the consent or joinder of the surviving spouse; and (4) makes technical changes. Requires election under this statute, when no administration of the estate is pending, to be accompanied by the registering of a notice indicating the county and file number of the clerk's filing with the register of deeds in every county where real property to be claimed under the filing is located. Amends the exceptions to the provision that neither household furnishings in the dwelling house nor life estates under this statute are subject to payment of debts from the estate of the deceased spouse as follows: (1) exempts mortgages or deeds of trust given by the deceased spouse to secure a loan, the proceeds of which were used to pay all or some of the purchase price of the encumbered real property, regardless of whether the secured party is the seller of the real property or a third-party lender; (2) exempts mortgages or deeds of trust on property with respect to which the elective life estate in this statute does not apply under subsection (a); and (3) makes technical changes.

    Amends the caption of GS Chapter 39, Article 2, to read Conveyances by Married Individuals.

    Makes technical and conforming changes, including the substitution of gender-neutral language, within both the language and captions of various statutes.

    Amends GS 39-8 (Acknowledgement at different times and places; before different officers; order immaterial). Authorizes proof or acknowledgement (was, probate) of instruments as to individual spouses to be taken before different authorized officers, and at different times and places, whether either or both of the officials reside in this State or in another state or country (was, whether both officials reside in this State or only one in this State and the other in another state or country).

    Amends GS 39-13 (Spouse need not join in purchase-money mortgage). Clarifies that the statute applies regardless of whether the secured party under the mortgage is the seller of the real property or a third-party lender.

    Amends GS 39-13.4 (captioned, as amended by this bill, Conveyances by spouses under deed of separation, separation agreement, or property settlement). Provides that the requirements of that statue also apply to spouses who previously executed a valid and lawful deed of separation, separation agreement, or property settlement (was, only deed of separation). Requires an instrument canceling a lawful deed of separation, separation agreement, or property settlement to be recorded in the office of the register of deeds of the county in which the lawful deed of separation, separation agreement, or property settlement is recorded. Provides that conveyances of real property by a spouse who executed a valid and lawful deed of separation, etc., as currently specified, may pass title to a grantee free and clear of the rights and interest in the property that the other spouse has, had, or might acquire (was, only those that the spouse might acquire) solely as a result of the marriage.

    Amends GS 41-10 (Titles quieted). Clarifies that an action may be brought by any person against another who claims an interest in real property adverse to the person who brought the action for the purpose of determining adverse claims.

    Amends GS 52-10 (Contracts between spouses generally; releases). Authorizes individuals of full age about to be married, and married individuals, to waive, release, or convey (was, release and quitclaim) rights they might acquire by marriage in each other's property, without valuable consideration.


  • Summary date: Mar 1 2017 - More information

    Amends GS 39-13.6 to provide that unless a contrary intention is expressed in the conveyance (currently, no provision providing for contrary intention expressed in the conveyance to control), a conveyance of real property, or any interest therein, to two individuals then married to each other vests title in them as tenants by the entirety when the conveyance is to a named individual and wife, or a named individual and husband, or a named individual and spouse (currently, a named individual and spouse is not included in language creating a tenancy by the entirety) or two named individuals, whether or not identified in the conveyance as being husband and wife, spouses, or married to each other, if at the time of the conveyance they are legally married to each other.

    Amends GS 39-13.3, GS 39-13.6, GS 39-13.7, GS 41-2, and GS 41-2.5 to change language from "husband and wife" and "husband or wife" in existing tenancy by the entirety provisions to "spouses," "married grantor," "married individual," or "two individuals married to each other" for the purpose of reflecting rights establish under federal law by the decision of the Supreme Court in Obergefell v. Hodges, which became effective in North Carolina on October 10, 2014, by application of General Synod of the United Church of Christ v. Resinger.   

    Amends GS 41-2(b) to clarify that any joint tenancy interest held by two individuals then married to each other, unless otherwise specified, is deemed to be held by them (currently, existing language does not include "by them" language) as a single tenancy by the entirety and is to be treated as a single party when determining interests in the joint tenancy with right of survivorship.

    Amends GS 41.2.5 concerning tenancy by the entirety in mobile homes to specify that the definition of mobile home provided in subsection (c) only applies to this statute (was, Article).  Makes clarifying change to GS 41-2.5(b).

    This act is effective when it becomes law and applies to conveyances made on or after October 10, 2014.


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