Can I continue my equitable distribution claim if my spouse dies before our divorce is finalized in North Carolina?
1. Detailed Answer
When you file for divorce in North Carolina, equitable distribution of marital property proceeds alongside the divorce itself under Chapter 50 of the North Carolina General Statutes. If your spouse dies before the court enters a divorce decree, the divorce action ends automatically. That means the court no longer has authority to divide property under the divorce case.
Death ends the divorce case, but it does not erase your interest in assets you shared. Instead, your spouse’s estate becomes responsible for distributing whatever remains. The estate will pay valid debts and follow any will or, if there is no will, the rules of intestacy in Chapter 29 of the General Statutes. As a surviving spouse, you qualify for certain rights under state law:
- Family Allowance: You may claim a family allowance of up to $30,000 to support yourself during probate. See N.C.G.S. 30-3.1.
- Intestate Share: If your spouse died without a will, you inherit under the intestacy rules in Chapter 29. The exact share depends on whether your spouse left descendants.
If your equitable distribution order was not final, you cannot ask the divorce court to finish dividing property. Instead, you have options in probate:
- Probate Administration: The personal representative handles estate assets. You should watch the probate notice published in the local paper to file any claim for your family allowance or for sums you believe you are owed.
- Creditor’s Claim: If you held a valid claim against your spouse (for example, they owed you money), you can present it to the estate under Chapter 28A. File your claim before the two-year deadline.
- Jointly Held Assets: Property held jointly with right of survivorship passes outside probate automatically to the surviving owner. Check deeds, titles, bank accounts, and retirement plans.
Working with an attorney experienced in both divorce and probate matters can help you gather all necessary documents, ensure your claims stay timely, and protect your financial interests after your spouse’s death.
2. Key Points to Remember
- The divorce action stops when your spouse dies; the court cannot finalize equitable distribution.
- You may receive a family allowance under N.C.G.S. 30-3.1 and an intestate share if there is no will.
- File any creditor’s claim against the estate under Chapter 28A within two years.
- Jointly titled assets may bypass probate and go directly to you.
- Review your spouse’s estate plan, will, and account ownership documents promptly.
Divorce and probate rules can overlap in complex ways. If your spouse dies before you finalize divorce, you must shift your focus from family court to the probate court. Protect your rights by acting quickly and understanding your options.
Contact Pierce Law Group
Pierce Law Group has attorneys with decades of experience guiding clients through divorce and probate. If you need help protecting your financial future after a spouse’s death, reach out today. Email us at intake@piercelaw.com or call (919) 341-7055. We will listen, explain your rights under North Carolina law, and work to secure what you need.
