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  • Writer's pictureDenise Davis

Surviving Spouses Property Rights in North Carolina

Updated: Nov 30, 2023


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The emotional weight of grieving for a departed spouse can make an estate settlement challenging to manage. It is helpful for the surviving spouse to understand their marital rights in property and inheritance when they begin to deal with estate matters.


Surviving spouses in North Carolina are guaranteed certain legal protections, including monetary support and a portion of marital assets.


Let's look at the property rights of the surviving spouse in North Carolina.


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Property rights of the surviving spouse when there is no will


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North Carolina intestate succession laws dictate what happens to a person's property when they die without leaving a will (i.e., intestate).


These statutes allow a surviving spouse to receive a portion of the deceased's estate. The amount of the inheritance depends on if the decedent also had surviving parents, children and whether the estate is real or personal property.


Although common law marriage grants a lifelong companion certain legal protections and benefits, North Carolina law does not recognize such unions.


The surviving spouse must be legally married to the deceased at their death to claim spousal rights.


Suppose a couple is legally separated at the time of death. In that case, the surviving spouse does not receive any of the assets.


Also, like other heirs under the Act, a surviving spouse must outlive the deceased spouse by 120 hours (5 Days) to gain property rights.


The amount of the inheritance that the surviving spouse can get is determined by the following criteria:

  • If there are no living children, grandchildren, or parents, the surviving spouse will inherit all of the decedent's estate, both real and personal.

  • If the deceased had no surviving children or grandchildren but at least a living parent, then the spouse gets half of the real estate. The spouse also receives the first $100,000 plus half of the balance of the personal property.

  • The surviving spouse is eligible to half of the real estate and the first $60,000 plus one-half of the balance of the personal property if there is only one surviving child or grandchild.

  • The surviving spouse gets one-third of the real estate and the first $60,000 plus one-third of the balance of the personal property if the deceased left behind more than one child or grandchild.

Property rights of the surviving spouse where there is a will


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A spouse cannot be disinherited under North Carolina law. Hence, if left out of a will, the surviving spouse can override the will and claim an elective share of the estate.


A prenuptial agreement, however, could invalidate the surviving spouse's claim to an elective share.


In North Carolina, a surviving spouse has six months from the issuing of letters of administration in conjunction with a will to make a claim for an elective share. Otherwise, the right is forfeited.


All non-probate assets that go to a spouse apart from a will, such as insurance or joint property holdings, are factored into the elective share.


In addition, according to the law, the elective share is determined by the length of the deceased spouse's marriage and is as follows:

  • If the marriage lasted less than five years, the surviving spouse is entitled to fifteen percent of the total net assets.

  • The surviving spouse is entitled to 25 percent of the total net assets if the couple was married for at least five years but less than ten years

  • If the marriage lasted for between 10 years and 15 years, the surviving spouse is entitled to 33% of the total net assets.

  • For a marriage that lasted more than 15 years, the surviving spouse receives 50% of the deceased total net assets.

The Spousal Year's Allowance


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For the first year after a spouse's death, North Carolina law (N.C.G.S. 30-15 through 30-33) provides financial support for the surviving spouse.


This provision is called a "year's allowance."


The surviving spouse has a year from the decedent's death to apply for this benefit through the Clerk of Court.


The value of the year's allowance is $60,000 and is only applicable to the deceased non-real estate property.


The allowance is added to the surviving spouse's intestate portion if the decedent dies without a will.


On the other hand, if the deceased left a will, the allowance will be subtracted from the surviving spouse's inheritance.


Summary

According to state law, a spouse in North Carolina has a right to an inheritance due to marriage.


Provisions for spouses include elective shares, intestate rights, and the year's allowance. Thus, North Carolina law safeguards the property rights of the surviving spouse regardless of whether or not there is a valid will.


Conclusion

In the matter of surviving spouse rights in North Carolina, I highly recommend you speak with a probate or estate planning attorney to receive accurate information that is specific for your situation.


Also, if you are in need of selling a home that has been included in probate or inherited, feel free to give me a call.


[Need help with probate? Join our Private Facebook group where you can ask questions and get answers, learn from others or share what you learned about the probate process. Be the first to join our new group! Join Here.]



Denise Harper Davis Certified Probate Real Estate Specialist

Certified Probate Real Estate Specialist

Licensed Realtor

252-902-9006





* NOTE: North Carolina Probate Solutions and the author of this article is not a licensed attorney or CPA. This post should not be considered legal or tax advice. Always consult an estate attorney or tax professional when needing legal answers and legal advice.

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