Dec282025
Probate Q&A Series

What steps do I take to get a year’s allowance as a surviving spouse if we were separated but never filed for divorce? – North Carolina

Short Answer

In North Carolina, a surviving spouse can request a spouse’s year’s allowance even if the spouses were separated, as long as an absolute divorce was never entered and the surviving spouse is not barred by a “spousal disqualification” rule (for example, certain abandonment or adultery-related conduct). The usual first step is to file a verified petition for a spouse’s allowance with the Clerk of Superior Court in the proper county and provide the clerk proof of the marriage and the decedent’s death. If the death certificate incorrectly lists the decedent as “divorced,” the allowance proceeding can help create a clear court record of marital status, and a separate vital records amendment request (often supported by a court order) is typically used to fix the certificate.

Understanding the Problem

Under North Carolina probate law, can a legally married but separated surviving spouse ask the Clerk of Superior Court to assign a spouse’s year’s allowance when no divorce case was ever filed, and what steps are required when the death certificate lists the decedent as divorced? The decision point is whether the person claiming the allowance qualifies as a “surviving spouse” at the time of death and can prove that status to the clerk in an estate-related filing.

Apply the Law

North Carolina gives “every surviving spouse” a spouse’s year’s allowance in the amount set by statute, unless the spouse is barred under North Carolina’s spousal disqualification law or another applicable rule. The claim is made by filing a verified petition with the Clerk of Superior Court in the county where venue is proper for the estate. If a personal representative (executor/administrator) has been appointed, the petition must be filed within a specific short deadline tied to when the estate letters were issued, and the petitioner must also provide the personal representative a copy of the petition by personal delivery or first-class mail.

Key Requirements

  • Qualify as a “surviving spouse” at death: The marriage must still be legally in place when the decedent died (separation alone does not end a marriage), and the surviving spouse must not be disqualified by an act that bars spousal rights under North Carolina law.
  • File the correct request with the correct clerk: The spouse’s allowance is requested by a verified petition filed with the Clerk of Superior Court in the county where estate venue is proper, with enough information for the clerk to decide entitlement and identify the personal property to be allotted.
  • Meet the timing and notice rules if an estate is open: If an executor/administrator has already been appointed, the claim must be filed within six months after letters are issued and a copy of the petition must be delivered or mailed to that personal representative.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts indicate a legal marriage followed by separation, with no divorce filed. Under North Carolina law, separation by itself does not end a marriage, so the central issue becomes proving “surviving spouse” status to the Clerk of Superior Court and addressing any claim that spousal rights are barred under the spousal disqualification statute. Because the death certificate reportedly lists the decedent as divorced based on information provided by a relative, the allowance filing should be built around strong documentation (marriage record, no-divorce verification if available, and identity documents) to create a clean court record supporting spouse status for estate purposes.

Process & Timing

  1. Who files: The surviving spouse. Where: The Clerk of Superior Court in the county where estate venue is proper in North Carolina (often the county where the decedent lived at death). What: A verified petition for spouse’s year’s allowance (many clerks use AOC Form E-100 for the basic spouse’s allowance). When: If an executor/administrator has already been appointed, file within six months after letters testamentary or letters of administration are issued; if no personal representative has been appointed, North Carolina law allows the claim to be brought without a fixed outer deadline, but delay can still create practical problems.
  2. Provide proof and asset details for the clerk’s assignment: Bring proof of marriage and death, and list the decedent’s personal property that could be allotted (cash, deposit accounts, vehicles, and similar items). Clerks commonly want enough documentation to identify the property and allow transfer based on certified copies of the allowance order.
  3. Address disputes and fix records: If the clerk requires a hearing or another person challenges the allowance, the matter can shift into a contested estate proceeding. Separately, use the resulting court record (and any specific finding/order regarding marital status, if entered) to support a request to amend the death certificate through North Carolina vital records procedures.

Exceptions & Pitfalls

  • Spousal disqualification defenses: Even with a valid marriage, spousal rights (including a year’s allowance) can be barred if a challenger proves an act listed in North Carolina’s spousal disqualification statute, such as certain types of abandonment or adultery-related separation. These issues can turn a routine allowance request into a contested estate proceeding.
  • Death certificate errors do not automatically control legal status: A wrong marital-status entry can create delays with banks, creditors, and estate administration. The allowance request should rely on primary documents (marriage record, absence of divorce judgment) rather than the death certificate’s checked box.
  • Missing the six-month deadline after letters: If a personal representative has qualified, the petition deadline becomes strict. Waiting to “see if the family opens an estate” can cause the deadline to run unexpectedly once letters issue.
  • Not giving required notice to the personal representative: When an estate is open, North Carolina requires the petitioner to provide a copy of the verified petition to the personal representative by personal delivery or first-class mail.

Conclusion

In North Carolina, a separated spouse can still qualify for a spouse’s year’s allowance if the marriage had not ended in an absolute divorce and no spousal-disqualification bar applies. The practical path is to file a verified spouse’s allowance petition with the Clerk of Superior Court in the proper county and support it with marriage and death documentation that proves surviving-spouse status despite an incorrect death certificate. If an executor/administrator has already been appointed, the next step is to file the petition within six months after letters are issued.

Talk to a Probate Attorney

If a death certificate incorrectly lists a decedent as divorced and that error is blocking a spouse’s year’s allowance or other estate actions, an attorney can help identify the right clerk’s filing, gather the proof the clerk will expect, and manage any contested estate issues. 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.