Can a Surviving Spouse Claim a Spousal Allowance and an Elective Share in the Same North Carolina Estate?

Detailed Answer

Yes. Under North Carolina law, a surviving spouse may request both the spousal year’s allowance and an elective share in the same estate. However, the allowance is credited against (subtracted from) the final elective-share payment, so the spouse does not receive a “double recovery.” Below is an overview of how each right works and how they interact.

1. What is the Spousal Year’s Allowance?

• Statute: N.C. Gen. Stat. § 30-15 through § 30-20
• Amount: Up to $60,000 of the decedent’s personal property (as of 2024; amount adjusts periodically).
• Deadline: File an Application for Year’s Allowance (Form AOC-E-100) with the clerk of superior court within one year of the death.
• Priority: Paid before most creditors, giving the spouse quick access to cash or personal assets while the estate works its way through probate.

2. What is the Elective Share?

• Statute: N.C. Gen. Stat. Art. 1A, §§ 30-3.1 to 30-3.6
• Purpose: Prevents a spouse from being disinherited. If the decedent’s will (or lack of will) leaves the surviving spouse less than the statutory percentage, the spouse can claim the elective share.
• Percentage: Based on years married—ranging from 15% (less than 5 years) to 50% (over 15 years) of the decedent’s Total Net Assets.
• Deadline: Must file a Petition for Elective Share within six months after issuance of letters testamentary or letters of administration. Missing this deadline forfeits the right.

3. How the Two Rights Work Together

• The year’s allowance is in addition to any share the spouse receives under the will or by intestacy (§ 30-17).
• When the spouse also claims an elective share, the allowance is treated as a credit toward that elective share (§ 30-3.4(b)). Example: If the calculated elective share is $200,000 and the spouse already received a $60,000 allowance, the estate owes the spouse another $140,000.
• The allowance therefore helps the spouse receive funds quickly, while final elective-share calculations often take months.

4. Practical Timeline

1. Death occurs — probate opens.
2. Within one year: spouse files Application for Year’s Allowance; clerk issues an Order of Assignment; assets are delivered to spouse.
3. Within six months after letters issue: spouse files Elective Share Petition in Superior Court (Estate file).
4. Estate inventories, values, and litigates any disputes; court enters elective share order and applies credit for allowance already received.

Helpful Hints

• Calendar every deadline. Missing the six-month elective-share window bars the claim forever.
• File the allowance early to cover immediate living expenses.
• The allowance protects only personal property. Real estate remains subject to creditors unless included in the elective share.
• If the spouse is also the personal representative, keep separate records of allowance withdrawals to avoid surcharge claims.
• Contemplating a prenup or postnup? Those agreements can waive either right—but must meet North Carolina’s contract requirements.
• Elective-share litigation can embroil family businesses, trusts, and joint accounts. Early legal advice can reduce costly disputes.

Take the Next Step

Understanding how the year’s allowance offsets an elective share can be tricky—and filing deadlines are unforgiving. Our firm’s North Carolina probate attorneys have guided many surviving spouses through this exact process. Call us today at (919) 341-7055 for a confidential consultation and protect your statutory rights before time runs out.