Jan292026
Probate Q&A Series

How do I claim the surviving spouse’s allowance when my spouse died without a will and there was a prenuptial agreement? – North Carolina

Short Answer

In North Carolina, a surviving spouse can claim the spouse’s allowance (often called a “year’s allowance”) by filing a verified petition with the Clerk of Superior Court in the county where the estate is administered, and sending a copy to the estate’s administrator if one has been appointed. In most estates with an appointed administrator, the petition must be filed within six months after the clerk issues letters of administration. A prenuptial agreement can affect these rights only if it contains a valid written waiver of the spouse’s rights; if it does not, the spouse’s allowance and intestate share generally remain available.

Understanding the Problem

When a North Carolina resident dies without a will, the surviving spouse can ask the Clerk of Superior Court to award the surviving spouse’s allowance from the estate’s personal property. The decision point is whether the prenuptial agreement actually waived the surviving spouse’s right to claim the spouse’s allowance (and related inheritance rights) or whether the spouse can still claim the allowance and an intestate share even with the agreement in place. The timing usually matters because the claim is tied to when the estate administrator is appointed and letters of administration are issued.

Apply the Law

North Carolina law gives a surviving spouse a statutory spouse’s allowance of $60,000 in value for support for one year after the decedent’s death, unless the spouse is barred by another applicable law. The claim is made in an estate proceeding before the Clerk of Superior Court, and it is typically satisfied from the decedent’s personal property (not real estate). Separately, when there is no will, the surviving spouse also has an intestate share under North Carolina’s intestacy statutes; the spouse’s allowance is generally in addition to that intestate share.

Key Requirements

  • Eligibility as “surviving spouse”: The claimant must be the decedent’s surviving spouse and not barred by a disqualifying rule that prevents a spouse from taking.
  • Proper claim filing and notice: The spouse must file a verified petition with the Clerk of Superior Court in the proper county and provide a copy to the estate’s personal representative (administrator) if one has been appointed.
  • Waiver analysis for the prenuptial agreement: The prenuptial agreement must be reviewed for a clear written waiver of spousal rights; if there is no enforceable waiver of the spouse’s allowance (or inheritance rights), the spouse can still pursue the statutory benefits.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The surviving spouse’s first step is to file a verified petition for the spouse’s allowance with the Clerk of Superior Court and provide a copy to the estate administrator, because an administrator has already been appointed. The prenuptial agreement should be reviewed for a specific, enforceable written waiver of the spouse’s allowance and inheritance rights; if it does not contain that waiver (or it is unenforceable), the spouse can still pursue the statutory allowance and the intestate share. If the inventory lists little to no value but there are credible concerns that personal property or financial assets were removed or accounts were closed improperly, the spouse may need the clerk’s help to address what property should be treated as estate property before the allowance can be meaningfully satisfied.

Process & Timing

  1. Who files: The surviving spouse. Where: Clerk of Superior Court (Estates) in the county where the estate is being administered in North Carolina. What: A verified petition/application for spouse’s allowance (many counties use AOC estate forms for the year’s allowance). When: If an administrator has been appointed, file within six months after the clerk issued letters of administration and deliver or mail a copy to the administrator.
  2. Clerk review and assignment: The clerk reviews the petition and the estate’s available personal property and enters an order assigning specific personal property (or cash) to satisfy the allowance. If the clerk determines a hearing is needed, the clerk can require the matter to proceed as a contested estate proceeding.
  3. Transfer and follow-through: Certified copies of the clerk’s order are typically used to transfer awarded assets (for example, to retitle a vehicle or obtain funds from a financial institution). If the estate does not have enough personal property at the time, the clerk can address a deficiency and the allowance can be satisfied later if assets are located or recovered.

Exceptions & Pitfalls

  • Prenuptial waiver language: Some prenuptial agreements include broad waivers of “all rights” in the other spouse’s estate; others waive only certain rights. The exact wording and enforceability can change whether the spouse’s allowance is available.
  • Inventory disputes and missing assets: A low-value inventory does not always mean the estate truly has no assets. If personal property, account statements, or title documents are missing, the spouse may need to raise the issue in the estate proceeding so the clerk can address what property belongs in the estate.
  • Power of attorney misuse after death: A power of attorney generally does not authorize transactions after the principal’s death. If accounts were closed or property was changed using a power of attorney after death, that can create disputes about whether assets must be returned to the estate and whether claimed “expenses” were proper.
  • Missing the six-month deadline: In estates with an appointed administrator, waiting too long can forfeit the spouse’s allowance claim even if the spouse would otherwise qualify.

For additional background on how this allowance works in practice, see how a surviving spouse allowance can affect timing and priority and what property can be included in a year’s allowance.

Conclusion

In North Carolina, a surviving spouse generally can claim a $60,000 spouse’s allowance by filing a verified petition with the Clerk of Superior Court in the county where the estate is administered and providing a copy to the estate administrator. In an intestate estate, the spouse’s allowance is generally in addition to the spouse’s intestate share, unless a valid written waiver in a prenuptial agreement changes that result. The key next step is to file the verified petition with the clerk within six months after letters of administration are issued.

Talk to a Probate Attorney

If there is a dispute about a spouse’s allowance in an intestate estate and a prenuptial agreement, our firm has experienced attorneys who can help explain the process, review the agreement for waiver language, and identify the timelines that apply. 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.