North Carolina law provides protections for surviving spouses upon the death of their spouse. The North Carolina General Assembly originally enacted these statutes to help protect surviving spouses and eligible children who will undoubtedly experience grief, disruption, and financial hardship after the death of their spouse or parent. It also prevents a surviving spouse from being completely disinherited – either accidentally or on purpose. It’s important to note that both the spousal allowance (also called the year’s allowance) and the elective share may be waived by consent of the parties in a written prenuptial or postnuptial agreement. This is something that should be flagged and discussed by your elder law and/or domestic attorney as part of your estate planning process.
Year’s Allowance/Spousal Allowance
The year’s allowance is intended to provide a means of support for the surviving spouse and for eligible children upon the decedent’s death and during the administration of the decedent’s estate. One of the major benefits of the allowance is that it has priority over claims against the estate, meaning it may be allocated to the surviving spouse and to eligible children before any claims against the estate are paid. It also provides a way to open and close an estate with limited assets in an expeditious and inexpensive manner.
The amount of the year’s allowance varies depending on the date of the decedent’s death and the date the application for the allowance is made with the clerk. The North Carolina General Assembly has increased the amount of the allowance multiple times over the years. The current allowance is $60,000 if the application for a year’s allowance was made on or after January 1, 2019.
Very recently the North Carolina legislature revised the law relating to the spousal allowance (or year’s allowance) – which is now effective and applies to anyone who dies after March 1, 2024. The new law is referenced as SESSION LAW 2023-120 SENATE BILL 218 and it substantially changed N.C.G.S. §30-15 and repealed most of the existing law relating to the year’s allowance. One big change was the removal of the one-year time limit to apply for the allowance. For decedent’s dying after March 1, 2024, there is no time limitation for bringing a claim for an allowance – subject to two exceptions: (1) the claim for an allowance must be filed during the lifetime of the spouse or eligible child, and (2) if a personal representative is appointed for the decedent’s estate, the claim must be made within six (6) months after the issuance of letters testamentary or letters of administration. So, if no letters are issued in the estate and the surviving spouse and eligible children are living, there is no time limitation on their right to claim the year’s allowance.
Another important change to the law is that the spousal allowance is now given priority over an eligible child’s claim for an allowance. See N.C.G.S. §30-20(a). The prior law directed that the year’s allowance would be prorated between the spouse and eligible children if both applied. An open question remains under the new law as to what would happen if an eligible child petitions for the allowance but the surviving spouse does not.
Elective Share
A spouse has the right to an elective share of his/her deceased spouse’s estate. This applies whether or not the deceased spouse left a will. The elective share can be awarded to the surviving spouse in addition to the year’s allowance – these benefits are not mutually exclusive. However, the elective share will take into account any amount taken by the surviving spouse under the year’s allowance in the final calculations so that the surviving spouse does not get a double recovery against the estate.
Pursuant to N.C.G.S. §30-3 the amount of the elective share is calculated by determining the Total Net Assets, the length of the marriage, and the value of the property otherwise passing to the surviving spouse via joint tenancy or payable on death (non-probate) asset transfers. For example, if the surviving spouse was married to the decedent for less than five (5) years, s/he is entitled to 15% of the Total Net Assets; between five and ten years of marriage the surviving spouse is entitled to 25% of the Total Net Assets; a marriage lasting between ten and fifteen years allows the surviving spouse to 33% of the Total Net Assets; and finally if the surviving spouse was married to the decedent fifteen years or more, the surviving spouse is entitled to 50% of the Total Net Assets. For a large estate, this could result in a substantial award under the elective share statute, and is well worth the effort needed to file the petition.
A petition for an elective share must be filed within 6 months of issuance of letters of administration (for a decedent who did not have a will) or letters testamentary (decedent who had a will). Once filed, the administrator/executor of the estate has 2 months to file a report of the total net assets with the Court.
Surviving spouses should consult their estate planning attorney upon the death of their spouse to determine if they are eligible to petition for the year’s allowance and/or the elective share.
Conclusion
North Carolina’s spousal allowance and elective share laws are crucial protections for surviving spouses, ensuring they are not left financially vulnerable after a spouse’s death. The spousal allowance provides immediate support, with recent changes allowing more flexibility in filing claims. The elective share offers additional security by guaranteeing a portion of the estate based on the marriage length.
For personalized guidance on navigating these options, contact us for a free consultation at 1-888-999-6600 or visit mcelderlaw.com/scheduling. Protect your rights and secure your financial future today.
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Attorney Jane Dearwester is based in our Hendersonville, NC office. She has over 20 years of experience practicing law in North Carolina. After graduating from Duquesne Law School in Pittsburgh, PA, Jane moved to North Carolina, and later joined our team in 2023.
