Jan82026
Probate Q&A Series

If I file for both a year’s allowance and a spouse’s share in the estate, can the adult children challenge it or block the distribution? – North Carolina

Short Answer

Yes. In North Carolina, adult children (and other people with legal standing) can challenge a surviving spouse’s year’s allowance award and can also participate in (and contest parts of) an elective share proceeding. However, they usually cannot simply “block” distribution by objecting informally; they must raise the dispute in the proper estate proceeding before the Clerk of Superior Court, and the estate is typically administered under the Clerk’s orders while the dispute is resolved.

Understanding the Problem

In North Carolina probate, a surviving spouse can claim a year’s allowance and can also claim a spousal share of the deceased spouse’s estate (often called an elective share). The practical question is whether the deceased spouse’s adult children can stop the surviving spouse from receiving those spouse rights when the deceased spouse was entitled to inherit from another estate that is still being administered. The key decision point is whether the spouse’s filings are made in the correct estate file and on time, because that determines whether the Clerk of Superior Court can award the spouse rights and whether challengers have a formal path to contest them.

Apply the Law

North Carolina treats both the year’s allowance and the elective share as rights that are handled through the Clerk of Superior Court as part of estate administration. A year’s allowance is a statutory allowance meant to support the surviving spouse for one year after death, and it is typically satisfied from the decedent’s personal property. An elective share is a separate statutory right that can require contributions from certain recipients of estate and non-estate assets so the surviving spouse receives the minimum share set by statute.

Key Requirements

  • Proper filing and service: The spouse must file the correct petition in the correct estate file with the Clerk of Superior Court, and required parties (including the personal representative) must receive required notice/service.
  • Eligibility (not barred or waived): The spouse must be a qualifying surviving spouse and not barred by a disqualifying circumstance or a valid waiver (for example, a written waiver in a marital agreement).
  • Timing: The elective share has a strict deadline tied to the issuance of letters to the personal representative, and year’s allowance claims also have timing rules that can become strict once a personal representative is appointed.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the surviving spouse is considering filing a year’s allowance and a spousal share claim so that the portion attributable to the deceased spouse is directed to the surviving spouse rather than bringing the deceased spouse’s adult children into the matter as heirs. Under North Carolina practice, an adult child who believes the allowance was not properly awarded (wrong amount, wrong assets, or eligibility issues) can start a formal challenge to the allowance under the statute, and adult children commonly appear as interested parties in elective share proceedings. Even so, an adult child generally cannot stop distribution just by disagreeing; the challenge must be filed in the proper estate proceeding and decided by the Clerk.

Process & Timing

  1. Who files: The surviving spouse (or a properly authorized agent/guardian in limited situations). Where: With the Clerk of Superior Court in the county where the deceased spouse’s estate is administered. What: A verified petition for the spouse’s year’s allowance (commonly on an AOC form used by the Clerk) and, if applicable, a petition/claim for elective share filed in the estate file. When: For elective share, generally within six months after letters testamentary/administration are issued; for year’s allowance, timing can depend on whether a personal representative has been appointed, and a six-month clock can apply after letters issue.
  2. Notice and participation: The personal representative must receive the filings, and other interested persons may be joined or appear. If the Clerk determines a hearing is needed on the year’s allowance, the matter can be directed into a contested estate proceeding.
  3. Decision and distribution: The Clerk enters orders awarding (or denying) the allowance and determining the elective share amount. If a contest is filed, the Clerk typically resolves the dispute through the estate proceeding process before final distribution on the disputed issue.

Exceptions & Pitfalls

  • Standing and deadlines matter: Adult children cannot block distribution just by objecting informally, but a person with standing can file a statutory challenge to a year’s allowance award, and missing the spouse’s filing deadlines (especially for elective share) can end the claim.
  • Wrong forum or wrong estate file: A year’s allowance and elective share are rights tied to the deceased spouse’s estate administration. If the dispute is really about how another relative’s estate should distribute an inheritance, the procedural steps may require coordination between the two estate files rather than trying to “redirect” assets without the correct orders.
  • Waiver/bar issues: A valid waiver (such as a marital agreement) or a statutory bar can change the outcome. These issues often become the focus of a child’s challenge.
  • Asset selection and documentation: Challenges often target which assets were used to satisfy the allowance and whether the petition accurately listed estate personal property. Clear inventories and supporting documents reduce delay.

Conclusion

In North Carolina, adult children can challenge a surviving spouse’s year’s allowance and can participate in an elective share proceeding, but they generally cannot block distribution without filing the proper estate proceeding and proving a legal basis to deny or reduce the spouse’s claim. The most important practical step is to file the spouse’s petitions in the correct estate file with the Clerk of Superior Court and meet the key deadline: the elective share is generally due within six months after letters are issued.

Talk to a Probate Attorney

If a surviving spouse is dealing with a dispute over a year’s allowance and an elective share, timing and procedure can determine whether the claim is paid or delayed by a contest. Our firm has experienced attorneys who can help explain the process, prepare the filings, and address objections in front of the Clerk. 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: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.