Short Answer

In North Carolina, you generally cannot personally claw back pre‑death spending from your spouse’s IRA or bank accounts. However, you can file an elective share claim that pulls both probate and many non‑probate assets (including IRAs and beneficiary‑designated funds) into the calculation and forces recovery from recipients to fund your statutory share. You can also request a standstill order and a discovery‑of‑assets proceeding, and you may claim a year’s allowance while those issues are sorted.

Understanding the Problem

You are a North Carolina surviving spouse asking whether you can recover money moved from your spouse’s IRA or bank accounts before probate. You are not the executor, and a new will disinherited you in favor of a niece. This question focuses on what you can do—quickly and lawfully—to identify and recover funds for your share.

Apply the Law

North Carolina gives a surviving spouse several tools. The elective share lets you claim a percentage of your spouse’s total net assets and compels recovery from people who received those assets, even outside probate (like IRA or POD beneficiaries). The Clerk of Superior Court handles the proceeding in the estate file. You must file the elective share petition within six months after letters issue in the estate. Separately, you may claim a year’s allowance from personal property within one year of death. The clerk can also order a standstill to prevent further transfers while values are determined.

Key Requirements

• Elective share deadline and forum: File your petition in the estate file with the Clerk of Superior Court within six months after letters issue.
• Scope of assets: The calculation includes non‑probate property your spouse controlled or designated, such as IRAs, beneficiary‑designated accounts, and certain joint accounts.
• Recovery from recipients: The personal representative must recover proportional contributions from “responsible persons” (e.g., IRA/POD beneficiaries, joint account holders) to fund your elective share award.
• Information and disclosure: Within about two months after you file, the personal representative must submit sufficient information about total assets so the clerk can determine your share.
• Standstill order: You can ask the clerk to temporarily prohibit further transfers of assets pending the elective share decision.
• Year’s allowance: You may seek a $60,000 allowance from personal property within one year of death; it is separate from, and can be combined with, an elective share claim.

What the Statutes Say

• North Carolina Gen. Stat. § 30‑3.4 (Elective share procedure) – File within six months of letters; clerk hears and decides the claim.
• North Carolina Gen. Stat. § 30‑3.5 (Satisfaction and recovery) – PR recovers from recipients of non‑probate assets; standstill orders and bonds available.
• North Carolina Gen. Stat. § 28A‑15‑12 (Proceeding to discover assets) – Tools to discover and recover estate property, including survivorship/POD funds.
• North Carolina Gen. Stat. § 30‑15 (Year’s allowance to spouse) – $60,000 allowance from personal property within one year of death.

Analysis

Apply the Rule to the Facts: Because you were disinherited and are not the executor, an elective share claim is your most effective way to reach IRAs and other beneficiary‑designated assets. Filing triggers the personal representative’s duty to disclose total assets and allows the clerk to order recovery from recipients to fund your share. If funds were moved before death while your spouse had cognitive impairment, those transactions may give the estate claims to recover; the elective share process and a discovery‑of‑assets proceeding help surface and address them.

Process & Timing

1. Who files: Surviving spouse. Where: Clerk of Superior Court in the county where the estate is administered. What: Petition for Elective Share with an Estate Proceeding Summons (AOC‑E‑102), plus (if desired) a request for a standstill order; separately, an Application and Assignment of Year’s Allowance. When: File the elective share within six months after letters issue; file the year’s allowance within one year of death.
2. The clerk sets deadlines; the personal representative must provide information about total assets within about two months of your elective share filing. A hearing follows to determine your award; timelines vary by county.
3. After the order, the personal representative apportions and recovers from recipients (including IRA/POD beneficiaries and joint holders) and pays your award. You may also pursue, or request the PR pursue, a proceeding to discover assets to address missing funds.

Exceptions & Pitfalls

• Missed deadlines: The six‑month elective share window is strict, and your right must be exercised during your lifetime.
• Waivers: A prenup/postnup or other written waiver can bar an elective share.
• Standing: The estate, not you personally, usually brings claims to unwind pre‑death transfers; use the elective share and discovery‑of‑assets tools to compel action.
• Non‑probate nuances: Year’s allowance comes only from personal property; many non‑probate assets (like IRAs) are addressed through the elective share recovery mechanism, not the allowance.
• Service and summons: Elective share is a contested estate proceeding; follow Rule 4 service using the estate proceeding summons.

Conclusion

Yes—indirectly. In North Carolina, a surviving spouse can file an elective share within six months of letters, which pulls many non‑probate assets (including IRAs and beneficiary‑designated accounts) into the calculation and compels recovery from recipients to fund the award. You can also claim a year’s allowance from personal property within one year of death. Next step: file an elective share petition with the Clerk of Superior Court and request a standstill order to preserve assets.

Talk to a Probate Attorney

If you’re dealing with missing IRA or bank funds and a new will that cuts you out, our firm has experienced attorneys who can help you understand your options and timelines. 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.