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Issue 16 Article 34
Husband and Wife Conveyances Under G.S. 39-13.3 and Joinder Problems
Ed Urban, Vice President and Corporate Counsel
G.S. 39-13.3 governs conveyances between husband and wife. A conveyance from a husband or wife to the other spouse of property owned by the grantor alone vests title in the grantee. G.S. 39-13.3(a). A conveyance from a husband or wife to the other spouse of real property held by husband and wife as tenants by the entirety vests full title in the grantee spouse. G.S. 39-13.3(c). G.S. 39-13.3(d) states that joinder of the spouse of the grantor is not necessary. G.S. 39-13.3(e) says that a conveyance under G.S. 39-13.3 is subject to G.S. 52-10 and G.S. 52-10.1 except that acknowledgment by the spouse of the grantor is not necessary.
An example of what this reference to G.S. 52-10 may mean is as follows: H (husband) conveys title held by the entirety to W under G.S. 39-13.3(c). W now has full title. Without more in the G.S. 39-13.3(c) deed, when W wants to convey title or give a deed of trust, W may need Hs joinder because of Hs potential elective rights under G.S. 29-30, unless H and W have executed and recorded a valid separation agreement under G.S.
39-13.4 wherein H waives marital rights (as would W, reciprocally). See G.S. 52-10 and G.S. 52-10.1. G.S. 39-7(a) would seem to require such joinder. G.S. 39-7(c) states that G.S. 39-7(a) shall not be construed to require the spouses joinder or waiver of rights in G.S. 29-30 where a different provision is made in, for example, G.S. 39-13.3 (among other listed statutes.)
A safe way for W (in the example above) to avoid this problem and various uncertainties is for H and W to both sign and acknowledge the deed wherein H would expressly waive G.S. 29-30 rights in the property, all under G.S. 52-10.
It is noted that G.S. 39-13.3, including G.S. 39-13.3(d), pertains to the conveyance to W in the above example (the first conveyance) and not the prospective subsequent deed or deed of trust by W. The above discussion applies to a conveyance under G.S. 39-13.3(a) as well.
G.S. 50-20(d) allows equitable distribution rights to be waived in compliance with G.S. 52-10 and G.S. 52-10.1.