Short Answer

Yes. In North Carolina, a surviving spouse is entitled to a $60,000 year’s allowance from the decedent’s personal property, even if the decedent died without a will. If you received less than the full amount or assets were missed, you can ask the Clerk of Superior Court to assign more or enter a deficiency, and you may petition for an additional allowance in a higher amount. Deadlines depend on when your spouse died and whether a personal representative is already appointed.

Understanding the Problem

You want to know whether, as a North Carolina surviving spouse, you can recover your full statutory spouse’s allowance after your husband died intestate. The stepchild is the estate administrator and currently controls the land and mobile home. You received only a small allowance and were offered a buyout, and you’re unsure if it is fair.

Apply the Law

North Carolina law provides a year’s allowance of $60,000 to a surviving spouse, payable from the decedent’s personal property for the first year after death. It is available whether or not there is a will and is in addition to your intestate share. Real estate is not used to fund this allowance. If the estate’s personal property is insufficient right now, the Clerk can enter a deficiency to be paid when assets later come into the administrator’s hands. A spouse may also file a special proceeding for an allowance above $60,000, subject to a statutory cap tied to the decedent’s average after-tax income for the three years before death. The proceeding is filed with the Clerk of Superior Court in the county of the decedent’s residence. Timing rules have changed recently, so confirm the applicable deadline.

Key Requirements

• Eligibility: You are the decedent’s surviving spouse; either the decedent or the spouse was a North Carolina resident at death.
• Amount: Baseline spouse’s allowance is $60,000, paid from personal property of the estate; it does not reduce your intestate share.
• Source of payment: Personal property only (e.g., titled vehicles, bank accounts, household goods). Real estate does not fund the allowance.
• Deficiency: If personal property on hand is short, the Clerk can enter a deficiency to be satisfied when additional assets are collected by the administrator.
• Additional allowance: You may petition for more than $60,000. The total of all allowances cannot exceed one-half of the decedent’s average annual after-tax income for the three years before death.
• Deadlines: For newer cases, if a personal representative has been appointed, apply within six months of issuance of letters; older cases generally used a one-year-from-death rule. Check with the Clerk because procedures can change.

What the Statutes Say

• North Carolina Gen. Stat. § 30-15 (Spousal year’s allowance) – Establishes the spouse’s $60,000 allowance and core eligibility.
• North Carolina Gen. Stat. § 30-18 (Source of payment) – The allowance comes from the decedent’s personal property.
• North Carolina Gen. Stat. § 30-27 (Additional allowance) – Allows a larger allowance and states the cap and special‑proceeding process.
• North Carolina Gen. Stat. § 30-23 (Appeal) – Provides a 10‑day appeal window from the Clerk’s assignment of allowance.

Analysis

Apply the Rule to the Facts: You qualify as a surviving spouse and your husband died intestate, so you are entitled to a $60,000 allowance from his personal property. Because you received only a small allowance, ask the Clerk to identify any additional personal property (for example, titled vehicles, accounts, or household goods) and enter a deficiency if assets are expected later. If the estate’s circumstances justify more support, file a petition for an additional allowance; the Clerk will consider the decedent’s average net income and others eligible for allowances.

Process & Timing

1. Who files: Surviving spouse. Where: Clerk of Superior Court (Estates Division) in the county where your husband lived at death. What: File AOC‑E‑100, Application and Assignment of Year’s Allowance. For more than $60,000, file a verified petition for additional allowance (no AOC form) under the special proceeding statute. When: If a personal representative has been appointed, apply within six months after letters issued; older cases typically used a one‑year‑from‑death deadline. Confirm with the Clerk.
2. The Clerk identifies eligible personal property and assigns items or cash to reach $60,000; if assets are insufficient now, the Clerk enters a deficiency for payment when the administrator later collects assets.
3. If seeking an additional allowance, the Clerk holds a hearing, considers the decedent’s income and other allowances, and issues an order. Any party with standing has 10 days to appeal the Clerk’s assignment.

Exceptions & Pitfalls

• Real estate vs. personal property: Real property (land and buildings) does not fund the spouse’s allowance. If the mobile home is titled as a motor vehicle in your husband’s name or estate, it is personal property; if it is jointly titled with right of survivorship between spouses, it passes to you outside the estate and cannot fund the allowance.
• Title matters: A “lifetime occupancy” gift without a deed or title usually does not create ownership. If the estate owns the land, the administrator may seek a court order to take possession; you still have due‑process rights and the PR must use the proper legal process.
• Missed assets: If personal property was overlooked or undervalued, ask the Clerk to adjust the allowance or enter a deficiency. Do not rely solely on an offered buyout without confirming asset values and your rights.
• Appeal window: If you disagree with the Clerk’s assignment, you generally have 10 days to appeal. Late appeals are usually barred.
• Creditor pressure: The allowance is typically exempt from general creditor claims and judgment liens against the decedent. Specific liens on assigned items still follow the property.

Talk to a Probate Attorney

If you’re dealing with a spouse’s allowance issue after an intestate death and aren’t sure whether you were paid correctly, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.