Jan12026
Probate Q&A Series

Can a year’s allowance include children who were not legally adopted but were supported and claimed on taxes? – North Carolina

Short Answer

Yes, sometimes. In North Carolina, a child can qualify for a child’s year’s allowance even without a legal adoption if the decedent stood in loco parentis to the child at the time of death (meaning the decedent had taken on the role and duties of a parent). Being supported and claimed on taxes can help show that relationship, but it does not automatically qualify a child.

Understanding the Problem

In North Carolina probate, the key question is whether a child who was not legally adopted can still be treated as an eligible “child” for a child’s year’s allowance when the decedent helped raise and support the child. The decision point is whether the decedent had a parent-like relationship with the child at the time of death that North Carolina law recognizes for this allowance. This issue often comes up when a surviving spouse is preparing a year’s allowance petition for the spouse and children while also starting the estate process with the clerk of superior court.

Apply the Law

North Carolina provides a child’s year’s allowance to certain children under age-based and status-based rules. The allowance is claimed by filing a verified petition with the clerk of superior court in the county where venue is proper for the estate. For children who were not legally adopted, the most common path is showing the decedent stood in loco parentis to the child at the time of death—meaning the decedent intended to take on the status and obligations of a parent, not just provide occasional care.

Key Requirements

  • Child qualifies under the statute: The child must fit a category the law recognizes (for example, under 21 at death and the decedent stood in loco parentis at death; or another qualifying category such as an adopted child or a child in utero).
  • Parent-like relationship at the time of death (for non-adopted children): The facts must show the decedent assumed the role of a parent—especially responsibility for support and maintenance—rather than a temporary or informal caregiving arrangement.
  • Proper filing and timing: A verified petition must be filed with the clerk of superior court, and if a personal representative has been appointed, the petition must be filed within six months after letters are issued and a copy must be delivered or mailed to the personal representative.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a surviving spouse preparing a year’s allowance petition for the spouse and children while opening an estate in North Carolina. If some of the children were not legally adopted, the petition generally needs facts showing the decedent stood in loco parentis to those children at the time of death—such as the decedent taking on day-to-day parental responsibilities and support. Prior support and claiming a child on taxes can support that story, but the clerk typically looks for broader proof of a parent-like role, not just financial help.

Process & Timing

  1. Who files: For a child’s allowance, the person with priority under the statute (often a guardian, a surviving parent the child lives with, or the person the child lives with). Where: The Clerk of Superior Court (Estates) in the North Carolina county where venue is proper. What: A verified petition for child’s allowance (and a separate application for the spouse’s allowance if applicable). When: If a personal representative has been appointed, file within six months after letters testamentary or letters of administration are issued, and deliver or mail a copy to the personal representative.
  2. Clerk review and assignment: The clerk reviews the petition and supporting information and assigns the allowance from cash or personal property of the estate (not real property). The spouse’s allowance has priority, and the child’s allowance is awarded only after the full spouse’s allowance is awarded.
  3. After the order: If someone with standing disputes eligibility (including whether a non-adopted child truly qualifies), that person may challenge the award through an estate proceeding within the statutory time window after the order is entered.

Exceptions & Pitfalls

  • Taxes do not control eligibility: Claiming a child as a dependent can be helpful evidence of support, but it does not replace the legal requirement that the child be a qualifying “child” under the statute (including proof of in loco parentis when there is no adoption).
  • “In loco parentis” needs more than temporary care: The relationship usually requires intent to assume the status of a parent and taking on parental obligations, especially support and maintenance, at the time of death.
  • Deadline trap after opening the estate: Once a personal representative qualifies and letters issue, the six-month filing deadline can arrive quickly, especially when the family is also correcting records and gathering documents.
  • Priority and funding limits: The spouse’s allowance takes priority over the child’s allowance, and allowances come only from cash or personal property (not real estate), which can affect what is available and how it is assigned.
  • Challenge risk: If eligibility is unclear (for example, a child lived elsewhere or the decedent’s role was limited), the allowance order can be challenged later, so the initial petition should be prepared carefully and consistently.

Conclusion

In North Carolina, a child does not have to be legally adopted to qualify for a child’s year’s allowance, but the child must fit a category recognized by statute—most often by showing the decedent stood in loco parentis at the time of death. Financial support and claiming the child on taxes may help prove that parent-like relationship, but they do not automatically qualify the child. The next step is to file a verified petition with the Clerk of Superior Court, and if a personal representative is appointed, file it within six months after letters are issued.

Talk to a Probate Attorney

If you’re dealing with a North Carolina year’s allowance petition involving children who were supported but not legally adopted, our firm has experienced attorneys who can help explain eligibility, evidence to gather, and filing deadlines with the clerk of superior court. 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.