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What are You Entitled to When Your Spouse Dies?



Article by: Aaron D. Arnette



When your spouse passes away, you may have many questions about your inheritance rights, especially if your spouse was the primary wage earner. In North Carolina, the surviving spouse’s inheritance rights depend on many factors. This article discusses some of the most important factors.


Decedent Dies Without A Will

A person who dies without a will is said to have died intestate, in which case their property, both real (land) and personal, will pass in accordance with North Carolina’s intestate succession statutes. The surviving spouse’s inheritance rights under intestate succession are set forth in N.C. Gen. Stat. § 29-14, a summary of which is provided below:

  • Decedent is not survived by a child, a grandchild, or a parent, the spouse takes the entire estate, both real and personal property.

  • Decedent is not survived by a child or grandchild, but is survived by a parent, the spouse takes a one-half interest in the real property and the first $100,000 plus one-half the balance of the personal property.

  • Decedent is survived by only one child, or by no child but by a grandchild(ren) of only one deceased child, the spouse takes a one-half interest in the real property and the first $60,000 plus one-half of the balance of the personal property.

  • Decedent is survived by more than one child, a grandchild(ren) or more than one deceased child, or a child and a grandchild(ren) of a deceased child, the spouse takes a one-third interest in the real property, and the first $60,0000 plus one-third of the balance of the personal property.


Decedent Dies With A Will That Disinherits the Surviving Spouse

North Carolina’s elective share statue (N.C. Gen. Stat. § 30-3.1) protects surviving spouses from being disinherited upon the death of a spouse who leaves the surviving spouse out of his or her will or only leaves them a nominal inheritance. If this happens, the elective share statute entitles the surviving spouse to a certain percent of the decedent’s total net assets, which percent ranges between 15% (if married less than 5 years) to 50% (if married more than 15 years). The percentage to which the surviving spouse is entitled is reduced by the value of net property passing to the surviving spouse due to the decedent’s death.

North Carolina’s Year’s Allowance

The year’s allowance statutes (N.C. Gen. Stat. § 30-3.1 through 33-33) are designed to provide the surviving spouse with temporary support and maintenance from the personal property of the decedent’s estate. Specifically, the surviving spouse is entitled to a $60,000 allowance, which is satisfied from the decedent’s personal property. The surviving spouse is entitled to this sum even if she was disinherited in his/her spouse’s will, and this amount comes off the top and is paid before any of the decedent’s creditors are paid. The court has authority to award an amount in excess of $60,000; however, the total allowance cannot exceed one-half of the average annual net income of the decedent for the three years preceding his or her death.


Surviving Spouse’s Right to Elect a Life Estate

A surviving spouse who is entitled to an elective share or an intestate share, as discussed above, may instead choose to take either (i) a life estate in one-third in value of all the real estate which the decedent owned during the marriage, or (ii) a life estate in the usual dwelling house occupied by the surviving spouse at the time of the death, along with ownership of the household furnishings.

Caveat/Conclusion

Many of the rights discussed above must be asserted within specific deadlines, otherwise the claims will be barred. Additionally, many of these rights can be modified or eliminated through a pre or post-marital agreement. Instead of merely relying on the above referenced statutes, the best course of action is to develop a comprehensive estate plan with an experienced estate planning attorney.

Sumrell Sugg, P.A. is a regional legal firm that provides clients with first-rate services in a cost-effective manner. Whether clients are individuals, corporations, or local governments and municipalities, our firm delivers on an undeviating promise of service. For more information, visit us at www.nclawyers.com.




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