Detailed Answer
1. Life Estates for Surviving Spouses
In North Carolina, a decedent can leave real property to a surviving spouse as a life estate. This interest gives the spouse the right to use, possess, and collect income from the property during his or her lifetime. To exercise this right, the surviving spouse must:
- File the decedent’s will with the clerk of superior court in the county where the property lies. The clerk will admit the will to probate and issue letters testamentary or of administration.
- Obtain a certified copy of the probate order and record it with the register of deeds in the county where the property is located. This creates public notice of the spouse’s life estate.
- Take possession of the property. As life tenant, the spouse must maintain the property in reasonable condition, pay property taxes, and make ordinary repairs. The spouse may collect rent or use the home as a principal residence.
- At the spouse’s death, the property passes to the remainder beneficiaries designated in the will or by statute.
2. Year’s Allowance
North Carolina law provides a surviving spouse with a year’s allowance for support in lieu of other family allowances. Under N.C. Gen. Stat. § 30-15, the allowance equals $60,000, payable out of the decedent’s personal property and cash before distribution to heirs and payment of creditors. To claim a year’s allowance:
- File a written petition with the clerk of superior court within six months after personal representative letters are issued.
- Specify the amount claimed (up to $60,000) and confirm that it will provide for the spouse’s support for one year.
- The clerk reviews the petition and orders payment from available personal property. If personal property falls short, the court may direct sale of real property.
For full text of the statute, see N.C. Gen. Stat. § 30-15: ncleg.gov/GS_30-15.
3. Elective Share
A surviving spouse may reject the provisions of a will and instead demand an elective share under N.C. Gen. Stat. § 30-3. The elective share equals 30% of the decedent’s augmented estate, which includes lifetime gifts, trusts, and probate assets. To exercise the elective share:
- File a Notice of Election with the clerk of superior court in the county where probate occurs. You must file this notice either within nine months after letters are issued to the personal representative or within one year after the decedent’s death, whichever comes first.
- Serve a copy of the Notice of Election on the personal representative and other interested parties.
- After election, the court calculates the elective share and directs the personal representative to assemble and distribute property—cash, securities, or a life estate in real property—so that the spouse receives at least 30% of the augmented estate.
For the full statute, see N.C. Gen. Stat. § 30-3: ncleg.gov/GS_30-3.
Key Steps and Tips
- Know your deadlines: 6 months to claim a year’s allowance; 9 months (or 1 year) to elect an elective share.
- File the right documents: petitions for year’s allowance and Notices of Election must go to the clerk of superior court.
- Record public notices: record life estate orders with the register of deeds to protect your interest.
- Understand estate values: elective share applies to an augmented estate that may include gifts and trusts.
- Consult an attorney: a probate attorney can help you calculate and secure your statutory rights.
If you need help exercising your rights as a surviving spouse in North Carolina probate, contact Pierce Law Group. Our attorneys guide you through life estates, year’s allowances, and elective shares. Email us at intake@piercelaw.com or call (919) 341-7055 for a consultation.
