Can a Binding Post-Separation Property Settlement Sever a Spouse’s Inheritance Rights in North Carolina When Divorce Remains Pending?
1. Detailed Answer
In North Carolina, a post-separation property settlement agreement (PSSA) can resolve how you and your spouse divide assets while your divorce is pending. However, inheritance rights—your spouse’s claim to your estate if you die before the divorce is finalized—are governed by separate rules under state probate law. Simply put, a PSSA does not automatically strip a spouse of inheritance or elective-share rights unless it expressly and properly waives those rights.
Separation Agreements Under Chapter 50
North Carolina law treats a PSSA under the Divorce Act (N.C.G.S. § 50-20) as a contract that can divide marital and separate property. To create a binding settlement, the agreement must be in writing, signed by both spouses, and approved by the court. You can read the statute at N.C.G.S. § 50-20.
Spousal Inheritance and the Elective Share
Under North Carolina’s intestate succession rules and elective-share statute, a surviving spouse may claim a portion of an estate even if the decedent’s will provides otherwise. These rights arise after death, not divorce, and remain in place until the marriage legally ends. The elective share and the waiver of inheritance rights are governed by Chapter 30, Article 3.2. See N.C.G.S. § 30-3.2.
When a PSSA Can Waive Inheritance Rights
A PSSA may include an explicit waiver of inheritance and elective-share rights, but only if it meets specific requirements under North Carolina law:
- Written Agreement: The waiver must appear in a signed, written contract.
- Express Language: The document must clearly state that the spouse gives up rights to the other’s estate.
- Compliance with Formalities: The agreement should follow the Statute of Frauds, including proper authentication if required.
If a PSSA lacks these elements or omits a clear waiver of inheritance rights, courts generally will not enforce a waiver by implication. Until the divorce is final, the surviving spouse remains eligible to claim their share under intestate succession or elective share statutes.
2. Key Takeaways
- Separation vs. Probate: A PSSA under N.C.G.S. § 50-20 divides property now. Inheritance rights apply later under Chapter 30.
- Express Waiver Required: A spouse loses inheritance rights only if the PSSA explicitly and properly waives them.
- Statutory Compliance: Follow N.C.G.S. § 30-3.2 formalities for elective-share waivers.
- Divorce Pending: Until the divorce finalizes, inheritance rights remain in effect unless expressly waived.
- Legal Review: Drafting a comprehensive PSSA requires attention to both family law and probate law.
Next Steps and Call to Action
Determining whether a separation agreement can sever inheritance rights involves careful drafting and strict adherence to North Carolina statutes. Pierce Law Group’s attorneys handle both divorce and probate matters. We help you craft agreements that address property division today and protect your estate plan for tomorrow.
Contact Pierce Law Group to discuss your situation. Email us at intake@piercelaw.com or call (919) 341-7055 to schedule a consultation.
