Jan92026
Probate Q&A Series

How do I decide whether to file a year’s allowance that would route the inheritance to me instead of splitting it with my spouse’s children? – North Carolina

Short Answer

In North Carolina, a surviving spouse can claim a year’s allowance (a statutory support allowance) from the deceased spouse’s estate, and that claim can change who ultimately receives assets that would otherwise pass through the deceased spouse’s estate to the deceased spouse’s children. The decision usually turns on (1) whether the deceased spouse’s estate has enough assets (including an inheritance interest) to satisfy the allowance, (2) whether the filing deadline is approaching, and (3) whether filing will trigger a contested estate proceeding with added cost and delay.

Understanding the Problem

In North Carolina probate, can a surviving spouse file a year’s allowance (and related spouse rights) so that a deceased spouse’s share of an inheritance is paid to the surviving spouse rather than being split with the deceased spouse’s adult children? The decision point is whether the year’s allowance claim should be used as a tool to redirect what would otherwise flow through the deceased spouse’s estate to the deceased spouse’s heirs, especially when the deceased spouse was entitled to receive money from another estate that is still being administered.

Apply the Law

North Carolina law gives a surviving spouse a statutory right to a year’s allowance for support. The allowance is claimed in an estate proceeding before the Clerk of Superior Court (the probate court in North Carolina). If the claim is properly filed and allowed, the allowance is satisfied from the deceased spouse’s estate assets (typically cash and personal property, and sometimes other assets depending on what the estate has). Because the allowance is paid before many other distributions, it can reduce or eliminate what would otherwise pass to other heirs, including adult children, through the deceased spouse’s estate.

Key Requirements

  • Eligible claimant: The claimant must be the surviving spouse (and the claim generally must be made during the surviving spouse’s lifetime, with limited ability for an agent or guardian to act in appropriate circumstances).
  • Proper filing and notice: The claim is made by a verified petition filed with the Clerk of Superior Court in the proper venue, and if a personal representative has been appointed, the petition must also be provided to the personal representative.
  • Timing: If a personal representative has been appointed for the deceased spouse’s estate, the year’s allowance claim must be filed within six months after the letters are issued. Separate timing rules can apply in proceedings seeking an additional allowance beyond the standard amount.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the deceased spouse was an heir to a relative’s estate that is still being administered, so the deceased spouse’s “estate” may include the right to receive that inheritance once it is distributed. If the surviving spouse files a year’s allowance in the deceased spouse’s estate and the estate has assets (or later receives assets) to satisfy it, the allowance can be paid to the surviving spouse before the remaining estate is divided among heirs, which may reduce what the adult children receive. If the year’s allowance is not filed (or is filed late when a personal representative exists), the deceased spouse’s share of the inheritance is more likely to be treated like any other estate asset and then pass under the will or intestacy to the deceased spouse’s heirs, which often includes adult children.

Process & Timing

  1. Who files: The surviving spouse (or, in limited situations, an authorized agent under a power of attorney or a court-approved guardian). Where: The Clerk of Superior Court for the county where the deceased spouse’s estate is administered (the county of proper venue for the estate). What: A verified petition for spouse’s allowance; in many counties this is handled using the North Carolina AOC year’s allowance forms used by the clerk’s office. When: If a personal representative has been appointed, file within six months after letters testamentary or letters of administration are issued.
  2. How it affects the inheritance interest: The personal representative (or the clerk, depending on posture) identifies estate assets available to satisfy the allowance. If the estate does not yet have cash because the inheritance from the relative’s estate has not been distributed, the allowance may still be pursued so it is positioned to be satisfied when assets are later received.
  3. Disputes and hearings: If an adult child (or another person with standing) disputes the allowance or the assets used to satisfy it, the matter can become a contested estate proceeding before the clerk, with notice, a hearing, and an order that can be challenged within the statutory window.

Exceptions & Pitfalls

  • Missing the correct deadline: North Carolina has different timing rules depending on the type of allowance request and whether a personal representative has been appointed. A late filing can forfeit leverage or the claim entirely.
  • Assuming the allowance automatically “takes” the inheritance: A year’s allowance is satisfied from the deceased spouse’s estate. If the estate has few assets, or the inheritance interest is uncertain, delayed, or disputed, the allowance may not immediately produce a payment even if the claim is valid.
  • Contested proceeding risk: Filing can escalate conflict with adult children because it changes the distribution math. A challenge can increase cost and delay, and the clerk may scrutinize what assets are assigned to satisfy the allowance.
  • Overlooking other spouse rights: Depending on whether the deceased spouse had a will and what assets exist, a year’s allowance may interact with other spousal rights (including elective share). The best strategy often depends on the overall asset picture and how title/beneficiary designations are set up.
  • Not coordinating with the other estate administration: When the key asset is an inheritance from a different estate, coordination is often needed so the personal representative and the clerk understand the nature of the deceased spouse’s interest and when it may be collected.

Conclusion

In North Carolina, filing a year’s allowance is often the main way for a surviving spouse to receive a statutory support amount from the deceased spouse’s estate before the remaining estate is divided, which can reduce what passes to the deceased spouse’s adult children. The practical decision usually turns on whether the deceased spouse’s estate has (or will receive) enough assets to satisfy the allowance and whether the filing deadline is close. The most important next step is to file a verified year’s allowance petition with the Clerk of Superior Court in the proper county within six months after letters are issued if a personal representative has been appointed.

Talk to a Probate Attorney

If dealing with a year’s allowance decision that could change whether an inheritance flows to a surviving spouse or is split with adult children, our firm has experienced attorneys who can help explain options, deadlines, and the likely probate process. 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.