Jan172026
Probate Q&A Series

Can a surviving spouse take everything when there is no will, or do the children automatically get a share? – North Carolina

Short Answer

In North Carolina, a surviving spouse does not automatically take everything when there is no will and the person who died also had children. Instead, the spouse and the children usually split the estate under North Carolina’s intestate succession rules, and the spouse’s share depends on how many children there are and what type of property is involved (real estate vs. other assets).

Also, not every asset is controlled by intestate succession. Some property may pass outside probate (for example, by survivorship or beneficiary designation), which can make it look like the spouse “got everything” even when the children still have inheritance rights in the probate estate.

Understanding the Problem

When a North Carolina parent dies without a will and leaves a surviving spouse and children, the key question is: can the surviving spouse claim the entire estate, or must the estate be divided between the spouse and the children through the probate process handled by the Clerk of Superior Court. The answer turns on whether the property is part of the probate estate and, if it is, how North Carolina’s intestate succession rules allocate shares between a spouse and children.

Apply the Law

North Carolina’s intestate succession law controls how a probate estate is divided when there is no valid will. The surviving spouse receives a defined share, and the children receive the remaining share. North Carolina also treats real property and personal property differently for the spouse’s intestate share, and the division is calculated after paying valid estate expenses and claims in administration.

Key Requirements

  • No valid will (intestacy): The rules below apply only if there is no will (or no will accepted for probate) controlling the property.
  • Identify what is in the probate estate: Intestate shares apply to probate assets. Some assets may pass by title or beneficiary designation and never get divided under intestacy.
  • Determine the family structure at death: The spouse’s share changes depending on whether there is one child/one child’s line, or two or more children (or lines of descendants).

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the decedent died without a will and left a surviving spouse and children, so North Carolina intestate succession generally requires a split between the spouse and the children for probate assets. If there is only one child (or descendants of one deceased child), the spouse’s intestate share is larger than if there are two or more children (or multiple “lines” of descendants). If the surviving spouse has been transferring assets into their name, it becomes important to separate (1) assets that legally passed to the spouse outside probate from (2) probate assets that should be administered and divided through the estate with the Clerk of Superior Court.

Process & Timing

  1. Who files: Typically the surviving spouse or another interested person (often an heir, including an adult child) seeks appointment of a personal representative. Where: The Clerk of Superior Court in the county where the decedent was domiciled at death (the estate file is opened there). What: An application to open the estate and be appointed (letters of administration for an intestate estate). When: As soon as practical after death, especially if assets need to be secured or there are concerns about transfers.
  2. Administration and identification of assets: The personal representative identifies probate assets, gathers them, and addresses required notices and claims. This step often includes confirming how each asset is titled (sole name vs. joint with survivorship vs. beneficiary designation) and whether any real property is part of the probate estate.
  3. Distribution to heirs: After valid expenses and claims are handled, the personal representative distributes the remaining probate estate according to the intestacy shares—meaning the spouse receives the statutory spouse’s share and the children receive the balance in the shares required by statute.

Exceptions & Pitfalls

  • “Everything went to the spouse” may be a title/beneficiary issue, not intestacy: Joint accounts with survivorship, payable-on-death accounts, life insurance, and retirement accounts often pass by contract/designation. Those assets may not be divided under intestate succession even if the decedent had children.
  • Real estate can be misunderstood: If real property was owned as tenants by the entirety (a common form for married couples in North Carolina), it generally passes to the surviving spouse by operation of law and is not divided under intestacy. If it was in the decedent’s sole name, it is more likely to be part of the probate estate and subject to intestate shares.
  • Number of children changes the spouse’s intestate share: Under North Carolina law, the spouse’s share in real property is generally one-half if there is only one child/one line, and one-third if there are two or more children/lines. Personal property has a statutory “first amount” component and then a percentage split, so the math can be different from what families expect.
  • Transfers after death can create litigation risk: Moving estate assets into one person’s name without authority can trigger disputes in the estate proceeding, including demands for an accounting and potential recovery efforts depending on what was transferred and how.
  • Year’s allowance and other allowances can affect what remains to divide: North Carolina provides statutory allowances for a surviving spouse (and sometimes children) that are handled through the Clerk of Superior Court and can change what property is left for intestate distribution.

Conclusion

In North Carolina, when a parent dies without a will and leaves a surviving spouse and children, the surviving spouse usually cannot take everything from the probate estate. Instead, the spouse receives the statutory spouse’s share and the children receive the remaining share under intestate succession, with the spouse’s portion depending on the number of children and whether the property is real or personal. The next step is to open an intestate estate with the Clerk of Superior Court in the proper county so a personal representative can identify probate assets and distribute them under the statute.

Talk to a Probate Attorney

If a parent died without a will and a surviving spouse is claiming everything (especially where assets may have been retitled), our firm has experienced attorneys who can help clarify what belongs in the probate estate, what passes outside probate, and what steps can protect inheritance rights. 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.