North Carolina Surviving Spouse Law: What You Need to Know
Whether you’ve been disinherited by your spouse or you simply want to protect your loved one after your death, understanding North Carolina surviving spouse law is crucial. Get the facts here.
The Basics of North Carolina Surviving Spouse Law
Under North Carolina law, a surviving spouse is a husband or wife who is alive after the death of their partner. Surviving spouses have certain rights and protections under the state’s inheritance and probate laws.
The law assumes that a married person would want his or her spouse to receive a significant portion of their property when he or she dies. Many married people arrange for their spouse to get personal property and real estate by making a last will and testament, a trust, or using non-probate strategies such as joint accounts with right of survivorship. However, sometimes a deceased spouse disinherits the surviving spouse, leaving them little to no property. This might happen through lack of planning, or because they didn’t want their spouse to get any property.
Here we examine the North Carolina surviving spouse laws and how they help stop the disinheritance of surviving spouses. Specifically, the surviving spouse is entitled to support from their spouse’s estate (“Year’s Allowance”), a share of their deceased spouse’s property (“Elective Share” and favorable intestate succession rules), and other benefits such as priority to become administrator of their spouse’s estate.
When someone dies, their property passes through a process called probate or estate administration. This complex process has a lot of deadlines, rules, accounting, and paperwork. Assets are listed and assigned values, debts are paid or settled, and property is distributed to the heirs (when there is no will) and devisees (people receiving property under a will).
Is a Spouse a Descendant?
Often, people use the terms “heir” and “descendant” interchangeably. However, it’s important to realize that they do not mean the same thing.
Legally, an heir is anyone who inherits from a decedent when there is not a will. North Carolina law (“intestate statutes”) determines who gets what. Heirs are most often spouses, children, parents, siblings, grandchildren, nieces, nephews, and cousins. There is a priority order depending upon the relation to the decedent.
On the other hand, descendants are those born or adopted into the direct line of descent. This means children, grandchildren, etc. While descendants are often heirs, not all heirs are descendants. For example, even though a spouse is not a descendant, they are an heir.
These relationships become important if a person dies intestate or without a valid will. In that situation, a court will employ intestate succession law to determine who the beneficiaries are and what people are entitled to receive.
Intestate succession in North Carolina gives priority to the surviving spouse, although they may need to share the estate depending upon who else survived the decedent, such as children. Others may attempt to claim a share of the estate, so it is important to understand the surviving spouse’s rights.
Surviving Spouse Rights in North Carolina
North Carolina’s intestacy statutes, which you can find in the North Carolina General Statute (N.C.G.S.) 29-14, detail the chain of distribution and allowance to various relations, including the surviving spouse. Upon the death of a partner, the statute provides that the surviving spouse shall inherit property as follows:
- If there is only one child (or if that child died and left one or more children), the spouse receives a one-half interest in real estate property and the first $60,000 plus one-half the remaining balance of personal property.
- If there are two or more children surviving (or if one or more child died and left one or more children), the spouse receives a one-third interest in real property, and the first $60,000 plus one-third the remaining balance of personal property
- If there are no surviving children (or surviving children of children who died), but there is one or more parents of the deceased, the spouse receives a one-half interest in real property and the first $100,000 plus one-half of the remaining balance of personal property.
- If the deceased spouse does not have surviving children, grandchildren, or parents, the laws give one hundred percent of the estate to the spouse, both personal and real estate property.
It is hard when someone dies and the family dynamics can make an intestate succession stressful. As such, it is important to have a skilled litigation attorney like Lee Laskody of Laskody Law Office on your side to help you understand surviving spouse rights in North Carolina.
North Carolina Surviving Spouse Elective Share
In some cases, the spouse leaves a valid will but attempts to disinherit the surviving spouse from their share of the property and total net assets. However, North Carolina has a protective statute called the elective share law that ensures the person receives a percentage of their partner’s property.
Typically, the law entitles a spouse to an elective share of the property owned by their spouse, such as real estate, vehicles, retirement accounts, bank accounts, and other assets. The amount will depend on how long you were married, but it can be as much as one-half of total net assets. These elective shares apply when one spouse dies, even if the deceased has children with the surviving spouse or other partners.
North Carolina surviving spouse elective share statutes protect a surviving spouse’s rights. The monetary amount of the elective share depends on the length of the marriage and goes as follows:
- If the marriage was less than five years, 15% of total assets pass to the spouse.
- If the union was between at least five years but less than 10 years long, it goes up to 25%.
- If they were married for at least 10 years but less than 15 years, the spouse receives 33% of the assets.
- Surviving spouses of unions longer than 15 years are eligible for 50% of the property.
It is possible to waive elective share rights, but one must do this through estate planning before or during the marriage. Both spouses must consent in writing. A family may also consider partial waivers as one of their legal options.
Get Help With Spousal Rights After Death in North Carolina
Need help with your intestate estate case or want to enact your right to an elective share? Reach out to Laskody Law Office for expertise in spousal rights after death in North Carolina. Often it is best for the surviving spouse to open the intestate estate and become administrator of the estate, and we can help you make this claim.
When a person dies, it impacts your life and that of your family. Our attentive and understanding attorneys can help you navigate the challenges of probate, court, tax law, insurance policies, and more.