Jan302026
Probate Q&A Series

What happens if the deceased and their partner were not married—does that change who inherits or who can make estate claims? – North Carolina

Short Answer

Yes. In North Carolina, an unmarried partner is not treated as a “surviving spouse” for probate purposes, so they generally do not inherit through intestate succession and do not have spouse-only rights like an elective share or a spouse’s year’s allowance. Whether the partner receives anything usually depends on non-probate transfers (like beneficiary designations or survivorship accounts) or being named in a valid will. Estate-related claims are typically handled through the estate’s personal representative, not by a partner acting alone.

Understanding the Problem

In North Carolina probate, the key question is whether a partner who was not legally married to the deceased is treated as a “surviving spouse” for inheritance and estate-claim purposes. This issue often comes up when a death is sudden and family members disagree about who should receive property or who has authority to act for the estate. The answer turns on marital status at death and on whether property passes through the estate (probate) or outside the estate by contract or title.

Apply the Law

Under North Carolina law, intestate succession (who inherits when there is no will) gives priority shares to a surviving spouse and then to other relatives in set classes. If there is no surviving spouse, the estate generally passes to the decedent’s children (or other descendants), and if none, then to parents, then to siblings, and so on. Separate from inheritance, certain “spouse-only” rights—like the elective share and the spouse’s year’s allowance—are available only to a surviving spouse and must be claimed through the clerk of superior court as part of an estate proceeding.

Key Requirements

  • Legal marriage at death: A partner must be a lawful spouse at the time of death to inherit as a “surviving spouse” under North Carolina intestacy rules and to claim spouse-only rights.
  • Probate vs. non-probate property: Some assets pass through the estate (and follow a will or intestacy). Other assets pass by beneficiary designation or survivorship title and may go to a partner even without marriage.
  • Proper party to make estate claims: Most claims on behalf of the deceased person’s estate (collecting assets, paying debts, pursuing certain lawsuits) must be brought by the estate’s personal representative appointed by the clerk of superior court.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the reported issue is that a relative was killed recently, and the deceased had a partner who was not married to them. Under North Carolina probate rules, that unmarried partner generally does not inherit as a spouse if there is no will, and they generally cannot claim spouse-only benefits like an elective share or a spouse’s year’s allowance. If the deceased named the partner as a beneficiary on life insurance, retirement accounts, or payable-on-death accounts, those assets may still pass to the partner outside probate, even without marriage.

Process & Timing

  1. Who files: An interested person (often a close family member) seeks appointment of a personal representative. Where: The Clerk of Superior Court in the North Carolina county where the decedent lived at death (estate division). What: An application/petition for letters (letters of administration if no will; letters testamentary if there is a will). When: As soon as practical after death, especially if bills must be paid, assets must be secured, or claims must be preserved.
  2. Identify what is “in the estate” vs. “outside the estate”: The personal representative typically gathers probate assets, while also identifying non-probate transfers (beneficiary designations and survivorship property) that may pass directly to a named person, including an unmarried partner.
  3. Address spouse-only claims only if there is a lawful spouse: If there is a surviving spouse, certain claims (like elective share and spouse’s year’s allowance) are filed as estate proceedings with the clerk and have strict timing rules tied to the issuance of letters.

Exceptions & Pitfalls

  • Non-probate transfers can override expectations: Even if an unmarried partner does not inherit through intestacy, the partner may still receive assets through beneficiary designations, payable-on-death accounts, transfer-on-death registrations, or survivorship title. Those assets usually do not follow the intestacy statute.
  • Confusing “living together” with legal spouse status: North Carolina does not treat cohabitation alone as a substitute for marriage in probate inheritance. A partner may still have rights under a will or contract-based transfers, but not as a “surviving spouse” under intestacy.
  • Authority to act for the estate: A partner (married or not) does not automatically have authority to access estate accounts or settle estate claims without being appointed by the clerk as the personal representative.
  • Mixing up estate money with wrongful-death proceeds: Some recoveries related to a death may not be part of the probate estate and may be distributed under different rules. For related reading, see wrongful-death settlement or estate money.

Conclusion

In North Carolina, not being married usually changes both inheritance and estate-claim rights: an unmarried partner generally is not a “surviving spouse,” does not inherit under intestate succession, and cannot claim spouse-only benefits like the elective share or spouse’s year’s allowance. Whether the partner receives anything often depends on a valid will or on non-probate transfers like beneficiary designations or survivorship title. The next step is to open an estate with the Clerk of Superior Court and have a personal representative appointed to identify heirs and secure assets.

Talk to a Probate Attorney

If a family member was killed and there is confusion about whether an unmarried partner has inheritance rights or can make estate claims, our firm has experienced attorneys who can help explain the probate process, identify who has authority to act, and flag deadlines tied to the issuance of letters. 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.