Dec42025
Probate Q&A Series

What happens to my year’s allowance request if the court decides I am not the spouse? – North Carolina

Short Answer

Under North Carolina law, only a “surviving spouse” can receive a spousal year’s allowance. If the clerk or court later decides the applicant is not the legal spouse, the spousal allowance must be denied or an earlier award can be set aside, and the property treated as part of the general estate again. The person found not to be a spouse may still have other rights (for example, as a creditor or on behalf of a child), but not the spousal year’s allowance.

Understanding the Problem

The narrow question here is what happens in a North Carolina probate matter when someone applies for a spousal year’s allowance from a decedent’s personal property, but the clerk or a trial court later determines that person is not the decedent’s legal spouse at death. The concern is whether the year’s allowance is simply reduced, converted into another type of allowance, or voided altogether, and what becomes of any property that was already assigned under the allowance order.

Apply the Law

North Carolina’s year’s allowance for a surviving spouse is a statutory benefit designed to provide one year of support from the decedent’s personal property. It is available only to a person who qualifies as a “surviving spouse” under North Carolina law, which requires a valid marriage that has not been legally dissolved and has not been forfeited under specific statutes. The allowance is requested and initially decided by the clerk of superior court in an estate proceeding, with deadlines tied to the issuance of estate letters when a personal representative has been appointed.

Key Requirements

  • Valid surviving spouse status: The applicant must be the decedent’s lawful surviving spouse at death; if the marriage was void, dissolved, or the right forfeited or waived, the spousal allowance is not available.
  • Proper application and timing: The applicant must file a verified petition for the year’s allowance with the clerk of superior court in the proper county, and if a personal representative has been appointed, do so within six months after letters are issued.
  • Allowance awarded only from personal property: Any year’s allowance for a spouse can be satisfied only from the decedent’s cash or other personal property (not real estate) and, if later found invalid, that personal property reverts to the estate for administration.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Because the spousal year’s allowance is reserved for a lawful surviving spouse, an applicant found not to be a spouse does not meet the first and most basic requirement. If the clerk learns this before signing an order, the application will ordinarily be denied and no allowance will be assigned. If an allowance order was already entered and a later contested proceeding establishes there was no valid marriage at death, the order can be set aside, and any property awarded is treated as part of the estate again, to be handled for heirs, devisees, or creditors according to other rules.

Process & Timing

  1. Who files: The person claiming to be the surviving spouse. Where: Clerk of Superior Court in the county where venue is proper under North Carolina’s estate venue statute. What: A verified “Application and Assignment of Year’s Allowance” (AOC-E-100) listing marital status and the decedent’s personal property. When: Any time after death, but if a personal representative has been appointed, **within six months after letters testamentary or letters of administration are issued**.
  2. If questions about marital status arise, the clerk may hold a hearing or direct that the issue be resolved as a contested estate proceeding. Evidence about the validity of the marriage (prior divorce, bigamy, annulment, or forfeiture) may be presented, and the clerk or court decides whether the applicant qualifies as a surviving spouse.
  3. If an allowance was granted and someone later challenges it, an interested party (including the personal representative) may file a contested proceeding under N.C. Gen. Stat. § 30-23.1 within **one year after the order awarding the year’s allowance**. If the challenge succeeds because the applicant is not a spouse, the court’s order will undo or adjust the allowance, and the affected assets return to the estate for proper distribution.

Exceptions & Pitfalls

  • If the court finds the marriage was void from the beginning (for example, a prior undissolved marriage), the person is not a surviving spouse for allowance purposes, even if there was a ceremony and they lived together as spouses.
  • The absence of a marriage license alone does not automatically defeat a claim if the marriage otherwise met North Carolina’s substantive requirements; the analysis focuses on whether there was a valid marriage at law.
  • Waiting too long can be costly: missing the six-month window after letters are issued can bar a timely application, and missing the one-year window after the allowance order can bar a later challenge to an improper award.
  • If the person who requested the allowance is later found not to be a spouse but has paid estate debts or supported minor children, those facts do not convert the spousal allowance into another benefit; instead, those issues may need to be raised separately as claims or as grounds for other relief.

Conclusion

Under North Carolina probate law, a year’s allowance from estate personal property is available only to a lawful surviving spouse. If the clerk or court ultimately decides the applicant is not a surviving spouse, the spousal year’s allowance must be denied or, if already ordered, can be undone in a timely contested proceeding, and any assigned assets are restored to the estate. The next practical step is to file, or respond to, the appropriate petition with the Clerk of Superior Court within the governing six-month and one-year time limits.

Talk to a Probate Attorney

If a year’s allowance has been requested or awarded in an estate and there is a dispute about whether the applicant is truly a surviving spouse, our firm has experienced probate attorneys who can help explain the options, deadlines, and potential challenges. 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.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.