Short Answer

In North Carolina, a surviving spouse can claim a year’s allowance from the decedent’s personal property, which comes off the top before heirs receive intestate shares. Your minor child also has a separate, smaller year’s allowance that is paid in addition to the child’s inheritance. These allowances are prioritized over most estate debts and reduce only the pool of personal property available for later distribution. Assets with named beneficiaries or survivorship typically are not affected.

Understanding the Problem

You want to know if a surviving spouse’s year’s allowance in North Carolina can reduce your child’s inheritance in an intestate estate. The decision point is this: can, and how does, the spouse’s allowance from personal property change what your child ultimately receives, and what can you do now to protect your child’s rights? The father died without a will and left a surviving spouse.

Apply the Law

North Carolina law gives a surviving spouse a year’s allowance from the decedent’s personal property and gives certain children their own year’s allowance. The Clerk of Superior Court (Estates Division) assigns these allowances, and applications must be made within one year of death. Allowances are taken from the decedent’s personal property and are generally paid before creditor claims and before intestate shares are calculated. Real estate does not fund an allowance, and many beneficiary-designated assets pass outside the estate.

Key Requirements

• Eligibility and timing: The surviving spouse and eligible children must apply within one year of the decedent’s death.
• Source of payment: Allowances are paid from the decedent’s personal property; they do not come from real estate.
• Priority: Allowances are set aside before paying most debts and before distributing intestate shares; if assets are short, the Clerk may prorate spouse and child allowances.
• Effect on shares: The spouse’s allowance reduces the personal-property pool before intestate distribution; the child’s allowance is in addition to the child’s intestate share.
• Outside-the-estate assets: Joint-with-survivorship accounts, POD/TOD accounts, and insurance or retirement with named beneficiaries usually are not used to fund allowances.

What the Statutes Say

• North Carolina Gen. Stat. § 30-15 (Spousal year’s allowance) – Spouse’s right to a one-year allowance from personal property; one-year window.
• North Carolina Gen. Stat. § 30-17 (Child’s year’s allowance) – Eligible children’s right to a separate one-year allowance; how it’s paid.
• North Carolina Gen. Stat. § 30-18 (Property to be assigned) – Allowances are satisfied from money or other personal property of the estate.
• North Carolina Gen. Stat. § 41-2.1 (Survivorship accounts) – Survivorship accounts generally pass to the survivor; special rule for applying the decedent’s portion to a spousal allowance.

Analysis

Apply the Rule to the Facts: Because the father died intestate with a surviving spouse, the spouse may file for a year’s allowance from the decedent’s personal property within one year. That allowance is carved out before calculating your child’s intestate share, so it can reduce the personal-property pool your child later inherits from. Your minor child can also claim a separate child’s year’s allowance that will be paid in addition to the child’s intestate share. Life insurance or retirement with named beneficiaries and joint-with-survivorship accounts typically bypass the estate and are not used to fund either allowance.

Process & Timing

1. Who files: For the child: the surviving parent, guardian, or a next friend may apply. Where: Clerk of Superior Court (Estates Division) in the North Carolina county where the decedent resided. What: Use AOC-E-100, Application and Assignment of Year’s Allowance. When: File within one year of the date of death. If a personal representative (PR) is appointed and does not act within 10 days after your written request, you may apply directly with the Clerk.
2. The Clerk identifies available personal property, prioritizes the spouse’s and child’s allowances, and may prorate if the estate’s personal property cannot cover both fully. The Clerk issues an assignment list that can transfer titled personal property (for example, a vehicle).
3. After allowances are assigned, the PR pays valid claims in statutory order from any remaining assets and then distributes any balance according to intestacy. If personal property was insufficient for the allowances, the Clerk enters a deficiency against the PR to satisfy later if assets come in.

Exceptions & Pitfalls

• If there isn’t enough personal property, the Clerk can prorate the spouse’s and child’s allowances; neither automatically wipes out the other.
• Real estate does not fund allowances. If most wealth is in land or a house, the allowance may be limited to available personal property.
• Beneficiary-designated assets (life insurance or retirement with named beneficiaries) and most survivorship accounts pass outside the estate and typically cannot be used to satisfy allowances.
• Specific liens attached to particular property (for example, a secured auto loan) may still follow that property even if it is assigned as part of an allowance.
• A spouse who has forfeited, waived, or renounced property rights may be ineligible for a spousal allowance; this turns on facts and filings.

Talk to a Probate Attorney

If you’re dealing with a surviving spouse’s allowance and a minor child’s rights in an intestate estate, our firm has experienced attorneys who can help you understand your options and timelines. Call us today.

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.