Feb32026
Probate Q&A Series

How do I request a spouse and child year’s allowance, and what happens if the clerk denies it? – North Carolina

Short Answer

In North Carolina, a spouse’s allowance and a child’s allowance are requested by filing a verified petition with the Clerk of Superior Court in the county where the estate venue is proper. If a personal representative has been appointed, the petition generally must be filed within six months after letters are issued, and a copy must be delivered or mailed to the personal representative. If the clerk denies the request (or requires a hearing), the matter can move into a contested estate proceeding and, depending on the type of order and timing, may be reviewable by a Superior Court judge under North Carolina’s estate-appeal rules.

Understanding the Problem

In North Carolina probate, the key question is how a surviving spouse (and a person filing on behalf of a qualifying child) requests a “year’s allowance,” and what procedural path applies if the Clerk of Superior Court refuses to award it. The decision point is whether the person applying qualifies as a “surviving spouse” (or qualifies to apply for a child) and follows the clerk-driven process in the correct county and within the required time window when an estate has a personal representative. In a separation where the couple signed an equitable distribution agreement but never obtained a divorce decree, the issue often becomes whether the marriage legally ended before death, because that status controls whether the clerk can award a spouse’s allowance.

Apply the Law

North Carolina treats the spouse’s allowance and child’s allowance as statutory “family allowances” handled through the Clerk of Superior Court as an estate proceeding. The clerk first decides whether the applicant is entitled to the allowance and then enters an order assigning specific personal property from the estate to satisfy it; if the estate’s personal property is not enough, the clerk can enter a deficiency judgment against the estate to be satisfied later when assets come into the personal representative’s hands. If the clerk decides a hearing is needed to determine entitlement or what property should be assigned, the clerk can require the petitioner to start a contested estate proceeding to resolve the allowance dispute.

Key Requirements

  • Proper petitioner and status: A spouse’s allowance requires a qualifying “surviving spouse,” and a child’s allowance requires a qualifying child (generally under 21 at the decedent’s death) with the petition filed by the person with statutory priority to act for the child.
  • Verified petition in the right county: The request is made by a verified petition filed with the Clerk of Superior Court in the county where estate venue is proper.
  • Timing and notice when there is a personal representative: If a personal representative has been appointed, the petition generally must be filed within six months after letters issue, and the petitioner must provide a copy to the personal representative by personal delivery or first-class mail.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The request for a spouse’s allowance turns first on whether the marriage legally existed at the time of death. A signed equitable distribution agreement and a separation (even with a domestic-violence protective order) do not, by themselves, end a marriage in North Carolina; a divorce decree generally does. If there was no divorce judgment entered before death, the clerk will usually treat the applicant as the “surviving spouse” unless another legal bar applies, and the request then becomes a procedural question of filing a verified petition in the proper county and meeting the six-month-from-letters deadline if an estate has a personal representative.

Process & Timing

  1. Who files: The surviving spouse (or the spouse’s authorized agent/guardian if applicable) files for the spouse’s allowance; a person with statutory priority files for a qualifying child. Where: Clerk of Superior Court (Estates) in the county where venue is proper for the estate. What: A verified petition requesting the spouse’s allowance and/or child’s allowance and identifying the property requested if known. When: If a personal representative has been appointed, file within six months after letters testamentary/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 assigning specific personal property to satisfy the spouse’s allowance first, then the child’s allowance. If personal property is insufficient, the clerk can enter a deficiency judgment against the estate to be satisfied later when assets come into the personal representative’s hands.
  3. If denied or a hearing is required: If the clerk denies the request or decides a hearing is needed, the clerk can direct the petitioner to commence a contested estate proceeding to decide entitlement and what property should be assigned. If the dispute continues after the clerk enters an order, the next step is typically review by a Superior Court judge under the applicable estate-appeal procedure, and the clerk’s order generally stays in effect unless a stay is entered.

Exceptions & Pitfalls

  • Spouse status disputes: If someone claims the applicant is not a “surviving spouse” (for example, arguing a legal bar applies), the clerk may require the issue to be resolved in a contested estate proceeding rather than approving the allowance administratively.
  • Missing the six-month window after letters: The most common procedural problem is waiting until after letters issue and then missing the six-month deadline that applies when an estate has a personal representative.
  • Assuming notice to other family members is required: Year’s allowance practice can move quickly through the clerk’s office; disputes often arise after an order is entered. North Carolina law provides mechanisms to challenge an award after entry, but those challenges have their own deadlines.
  • Confusing “allowance” with final inheritance: In a testate estate (a will), the spouse’s allowance is generally charged against what the spouse takes under the will; in an intestate estate (no will), it is generally in addition to the spouse’s intestate share. The child’s allowance is generally in addition to the child’s share.
  • Not preparing for an order that supports appeal review: If the clerk denies an allowance and enters an order without clear findings and conclusions, it can complicate review by a Superior Court judge. In practice, proposed orders that clearly lay out the key facts and legal conclusions can reduce that risk.

For more background on how these allowances work in practice, see what a spouse’s allowance is and what happens at a hearing on a year’s allowance.

Conclusion

In North Carolina, a spouse’s allowance and child’s allowance are requested by filing a verified petition with the Clerk of Superior Court in the proper estate county, and the clerk assigns personal property to satisfy the allowances (with the spouse’s allowance handled first). If a personal representative has been appointed, the petition generally must be filed within six months after letters issue and a copy must be provided to the personal representative. If the clerk denies the request or requires a hearing, the dispute can proceed as a contested estate matter, with potential review by a Superior Court judge under the applicable estate-appeal procedure.

Talk to a Probate Attorney

If a year’s allowance is being requested after a separation, or if the Clerk of Superior Court is questioning spouse status or denying the request, our firm has experienced attorneys who can help explain the process, prepare the verified petition, and track the deadlines for contested proceedings and review. 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.