Jul292025
Probate Q&A Series

Elective Shares, Spousal Allowances, Dividing Marital Property, and Reopening Estates After Discovering Late Wills to Protect Spousal Rights and Assets in North Carolina

One can protect a surviving spouse’s rights and assets in probate by using elective shares, spousal allowances, correct property division, and reopening estates when discovering a later will. Understanding these options early helps prevent disputes and secure financial support.

Elective Share: A Guaranteed Minimum Inheritance

North Carolina law grants a surviving spouse the right to an elective share under N.C. Gen. Stat. § 30-3.1A. This provision ensures at least one third of the decedent’s net intestate estate, plus half of the augmented estate. To claim this share, the spouse must file a notice of election within six months after the notice of estate administration first publishes. Missing the deadline bars the elective share.

Spousal Allowance: Immediate Support During Probate

A surviving spouse may request a family allowance under N.C. Gen. Stat. § 30-18. The court can award up to $30,000 for one year to cover basic living expenses. The allowance takes priority over most debts and distributions.

Spouses also qualify for exemptions. They may claim:

Dividing Marital Property After Death

Property classification affects how assets pass at death. In North Carolina:

  • Joint tenants with rights of survivorship transfer automatically to the surviving spouse.
  • Property held as tenants in common passes by will or intestacy.
  • Separate property only passes by will or intestate rules.

The surviving spouse should review deeds and account titles. Proper classification can streamline probate and reduce litigation.

Reopening an Estate for a Later-Discovered Will

If you find a will after probate closes, you can petition the clerk of superior court to reopen the estate under N.C. Gen. Stat. § 28A-18-8. File within six months of learning about the will. You must prove the later will’s validity. If the court admits it, the estate distribution adjusts to match the new document.

Key Steps to Protect Spousal Rights

  • File the elective share within six months of estate notice.
  • Request family allowance early for immediate support.
  • Identify property titles for correct classification.
  • Monitor probate court records for all written wills.
  • Petition to reopen the estate promptly upon finding a later will.

Protecting a spouse’s rights requires prompt action and a clear understanding of probate steps. Pierce Law Group has seasoned attorneys ready to guide you through each process. Contact us at intake@piercelaw.com or call (919) 341-7055 today to secure your spouse’s inheritance and rights.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.