Short Answer

In North Carolina, a surviving spouse can claim a $60,000 year’s allowance from the decedent’s personal property, regardless of whether there is a will, unless the spouse is disqualified or has waived the right. To claim, the spouse files an application with the Clerk of Superior Court; if an estate administrator has been appointed, the spouse must file within six months after letters are issued. A spouse can waive the allowance by filing a written renunciation with the clerk or by a valid premarital/postmarital agreement that explicitly gives up the allowance.

Understanding the Problem

You want to know how, under North Carolina probate law, a surviving spouse can either claim or waive the statutory year’s allowance when the decedent died without a will. The decision point is whether the spouse will apply for the $60,000 allowance with the Clerk of Superior Court or renounce it in writing. Here, the decedent died three days after marrying the spouse and left only an intestate estate to be administered.

Apply the Law

Under North Carolina law, a surviving spouse is generally entitled to a $60,000 year’s allowance from the decedent’s personal property for support during the first year after death. The clerk processes the application in the decedent’s county of domicile. If the court has issued letters to a personal representative (administrator or executor), the spouse must apply within six months of that issuance. The allowance is paid from personal property (for example, cash, bank accounts, and vehicles), is prioritized ahead of general unsecured creditors, and will count as property passing to the spouse for any elective share calculation. A spouse may waive the allowance by written renunciation filed with the clerk or by a clear waiver in a premarital or postmarital agreement.

Key Requirements

• Eligible spouse: The applicant must be the decedent’s surviving spouse and not barred by law (for example, certain acts barring property rights).
• Amount and source: Up to $60,000, satisfied from the decedent’s personal property and generally protected from unsecured creditor claims.
• Where to file: Clerk of Superior Court in the North Carolina county where the decedent was domiciled.
• When to file: If letters have been issued, the spouse must apply within six months after issuance; if no letters, the spouse may apply directly with the clerk.
• How to waive: File a written renunciation with the clerk or rely on a valid premarital/postmarital agreement expressly waiving the allowance.
• Contests: An interested person may challenge an award, amount, or the assets allotted within one year of the order.

What the Statutes Say

• N.C. Gen. Stat. § 30-15 (Spousal year’s allowance) – Establishes the spouse’s allowance and basic procedure.
• N.C. Gen. Stat. § 31B-1 (Renunciation) – Allows a spouse to renounce or waive rights, including the year’s allowance.
• N.C. Gen. Stat. § 30-27 (Additional allowance by special proceeding) – Lets a spouse seek more than $60,000 in a special proceeding, subject to statutory limits.
• N.C. Gen. Stat. § 30-23.1 (Contested proceedings re: allowance) – Provides a process and one-year deadline to challenge an award.

Analysis

Apply the Rule to the Facts: Because the decedent died intestate and recently married, the surviving spouse still qualifies to seek the $60,000 allowance if not otherwise barred. The allowance comes from personal property, so vehicles and cash-like assets are relevant; the encumbered house is real property and not the primary source for this benefit. If you, as the child and proposed administrator, obtain letters, the spouse must file the allowance application within six months after your appointment. If the spouse prefers to waive, a written renunciation filed with the clerk (or a valid agreement expressly waiving the allowance) will clear the way for distribution under intestacy.

Process & Timing

1. Who files: The surviving spouse. Where: Clerk of Superior Court in the decedent’s North Carolina county of domicile. What: Application and Assignment of Year’s Allowance (AOC‑E‑100); if waiving, Renunciation and Waiver of Spousal Year’s Allowance (AOC‑E‑213). If an administrator has been appointed, the spouse must deliver a copy of the application to the personal representative. When: If letters have been issued, file within six months after issuance.
2. Clerk review and assignment: The clerk may assign specific personal property or cash up to $60,000. If personal property located later is needed to complete the award, the clerk can supplement the assignment.
3. Post-assignment: The administrator carries out the assignment and reports accordingly. If the spouse seeks more than $60,000, file a special proceeding for an additional allowance; the total of all allowances is capped by statute and procedure and deadlines can apply.

Exceptions & Pitfalls

• Disqualification: Certain acts can bar a spouse’s property rights; confirm eligibility before assigning or waiving.
• Wrong asset pool: The allowance is paid from personal property; don’t plan to satisfy it from real estate unless converted to personalty.
• Missed notice: If letters have issued, the spouse must deliver a copy of the application to the personal representative.
• Contests: An interested person (including the personal representative) can challenge an award, amount, or the specific assets allotted within one year of the order.
• Elective share interaction: The year’s allowance counts as property passing to the spouse in elective share calculations and may affect later apportionments.
• Additional allowance limits: A request for more than $60,000 must follow special‑proceeding rules and statutory caps; deadlines and county practice may vary.

Talk to a Probate Attorney

If you’re dealing with a spouse’s year’s allowance in an intestate estate and need help coordinating the application, notice, and asset assignment, 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.