Jan292026
Probate Q&A Series

How does a surviving spouse’s year’s allowance work, and does it protect inheritance money from the deceased spouse’s creditors? – North Carolina

Short Answer

In North Carolina, a surviving spouse can claim a statutory “year’s allowance” (currently valued at $60,000) from the decedent’s estate for one year of support, and it is designed to be paid ahead of most estate creditor claims. If properly claimed and awarded, the spouse’s allowance is exempt from liens, judgments, and other claims against the decedent’s estate. The allowance is paid from the estate’s cash and personal property (not real estate), and there are strict timing rules when a personal representative has been appointed.

Understanding the Problem

In a North Carolina probate estate where the deceased spouse left debts (such as medical bills), the key question is whether the surviving spouse can claim a statutory year’s allowance and, by doing so, keep estate funds from being used to pay the deceased spouse’s creditors. The decision point is whether the estate has cash or personal property that can be awarded as the spouse’s allowance through the Clerk of Superior Court before those assets are applied to creditor claims. Timing matters if an estate has already been opened and a personal representative has been appointed.

Apply the Law

North Carolina law gives “every surviving spouse” a right to a spouse’s allowance valued at $60,000 for support for one year after the death of the deceased spouse, unless the spouse is legally barred. 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. When a personal representative has been appointed, the petition generally must be filed within six months after letters are issued, and the petitioner must provide a copy to the personal representative. If awarded, the spouse’s allowance is exempt from liens, judgments, executions, and other claims against or owed by the decedent’s estate, which is why it often matters in an estate with heavy debts.

Key Requirements

  • Eligibility as a surviving spouse: The claimant must be the decedent’s surviving spouse and not barred by a disqualifying rule (for example, certain wrongdoing that bars inheritance rights).
  • Proper claim and timing: The spouse must file a verified petition with the Clerk of Superior Court in the proper county, and if a personal representative is appointed, the claim must be made within six months after letters issue and a copy must be delivered or mailed to the personal representative.
  • Payable from the right kind of estate property: The allowance is awarded from the decedent’s cash and personal property (not real property). If there is not enough personal property, the clerk can enter a deficiency judgment against the estate to be satisfied later if assets come in.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the estate has creditor debts (including medical bills), and the surviving spouse is considering a year’s allowance to prevent incoming inheritance funds from being used to pay those creditors. Under North Carolina law, if the estate has cash or personal property that can be awarded as the spouse’s allowance, that award is intended to be exempt from claims against the decedent’s estate. The practical issue becomes (1) whether the assets are estate assets (as opposed to non-estate transfers like certain beneficiary-designated accounts), (2) whether the spouse files the verified petition on time, and (3) whether the clerk awards specific personal property (or a deficiency judgment) to satisfy the allowance.

Process & Timing

  1. Who files: The surviving spouse (or a properly authorized agent/guardian in limited situations). Where: The Clerk of Superior Court in the county where venue is proper for the estate. What: A verified petition requesting the spouse’s allowance and identifying the estate personal property to be awarded. 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 order: The clerk determines entitlement and enters an order awarding specific cash/personal property as the spouse’s allowance. In some cases, the clerk may require the matter to proceed as a contested estate proceeding to decide what should be awarded.
  3. Payment/transfer: The personal representative (if one exists) carries out the clerk’s order by transferring the awarded property. If personal property is insufficient, the clerk can enter a deficiency judgment against the estate, to be satisfied later if additional assets come into the estate.

Exceptions & Pitfalls

  • Not all “inheritance money” is estate property: The spouse’s allowance is awarded from estate cash/personal property. Some assets pass outside probate (for example, certain beneficiary-designated accounts), and the allowance process may not control those transfers.
  • Deadline problems after the estate is opened: Once letters are issued to a personal representative, missing the six-month filing window can forfeit the ability to claim the allowance in that estate administration.
  • Allowance vs. will share: In a testate estate, the spouse’s allowance is generally charged against what the spouse receives under the will, even though it can still be a tool to receive property sooner and to prioritize the allowance over creditor claims against the estate.
  • Insufficient personal property: If the estate has little personal property, the clerk may award what exists and enter a deficiency judgment, but the timing of actual payment can depend on whether additional estate assets are later collected.
  • Challenges after an award: Parties with standing (including the personal representative) may be able to challenge the award, and North Carolina law sets a deadline tied to the date the clerk’s order was entered.

Conclusion

In North Carolina, a surviving spouse can claim a $60,000 year’s allowance from the decedent’s cash and personal property, and the allowance is intended to be exempt from liens, judgments, and other claims against the decedent’s estate—meaning it can reduce what is available to pay the deceased spouse’s creditors. The key next step is to file a verified spouse’s allowance petition 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.

Talk to a Probate Attorney

If a surviving spouse is dealing with an estate that has medical bills or other creditor debts and needs to understand whether a year’s allowance can protect estate funds and how to claim it on time, our firm has experienced attorneys who can help explain the options and deadlines. 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.