Probate Q&A Series

How do North Carolina’s year’s allowance and elective share protect a surviving spouse when the will leaves specific assets?

Detailed Answer

What Is the Year’s Allowance?

North Carolina law grants a surviving spouse a “year’s allowance” from the decedent’s personal property. Under N.C. Gen. Stat. § 30-15, the court sets aside a sum—currently up to $60,000—for the spouse’s support and maintenance during the first year after probate begins. The allowance comes from assets subject to administration, and it takes priority over most creditor claims. It applies even if the will leaves all personal property to others.

How Does the Elective Share Work?

If a will distributes assets in a way that leaves the spouse with less than one-third of the net probate estate, the surviving spouse may invoke the elective share. Under N.C. Gen. Stat. § 30-3.1, the spouse can elect to receive one-third of the decedent’s net estate instead of what the will provides. To claim this right, the spouse must file a written election with the clerk of superior court within six months after the will’s admission to probate.

Protecting the Spouse When Specific Assets Are Willed Away

Imagine a scenario where a decedent’s will leaves a family home to adult children and all artwork to a friend, with nothing explicitly for the spouse. In that case:

  • The spouse may take the year’s allowance of up to $60,000 in personal property. This covers items like cash, bank accounts, furniture and other personal effects.
  • If the spouse needs more than the allowance, or if the estate’s total value makes one-third a larger sum, the spouse can elect the one-third share of the net probate estate under the elective share statute.

These two claims can run together. The year’s allowance serves immediate needs. The elective share addresses long-term equity and ensures the spouse does not receive less than the statutory minimum.

Key Points to Remember

  • Year’s Allowance Amount: Up to $60,000 for one year. (N.C. Gen. Stat. § 30-15)
  • Elective Share Amount: One-third of the net probate estate. (N.C. Gen. Stat. § 30-3.1)
  • Deadline for Year’s Allowance: The court usually acts early in probate; spouses should raise the issue promptly.
  • Deadline for Elective Share: File a written election within six months after probate admission.
  • Priority: Year’s allowance has priority over most creditors. Elective share cuts into residual estate distributions.
  • Application: Both rights apply even when the will leaves specific assets to other beneficiaries.

Protect Your Rights Today

If you face a situation where a loved one’s will leaves you with specific assets that fall short of your needs, you have clear statutory rights. Pierce Law Group’s attorneys know how to secure the year’s allowance and elective share for surviving spouses under North Carolina law. Contact us for a no-obligation consultation.

Email us at intake@piercelaw.com or call us at (919) 341-7055 to protect your inheritance rights.