Jan222026
Probate Q&A Series

If my spouse died and we were never formally divorced, why would the probate affidavit say they were not married? – North Carolina

Short Answer

In North Carolina probate, an affidavit may list the decedent as “not married” because the person completing it believes there was no legal surviving spouse for probate purposes, even if no absolute divorce was ever entered. That can happen when there was a divorce from bed and board, an annulment, a void marriage issue, or a statutory “spousal forfeiture” situation (such as abandonment or certain adultery-related separation) that can bar a spouse’s inheritance rights. It can also be a simple mistake or an assumption based on long-term separation.

Understanding the Problem

In North Carolina probate, a common question is: if a decedent died while still legally married (no absolute divorce), can probate paperwork still describe the decedent as “not married,” and what does that mean for the surviving spouse’s rights. The decision point is whether the affidavit is using “not married” as a shorthand for “no spouse with inheritance rights,” or whether it is simply incorrect and needs to be corrected in the estate file with the Clerk of Superior Court.

Apply the Law

North Carolina treats “married” status and “entitled to inherit as a spouse” as related but not always the same thing in probate. Even without an absolute divorce, a spouse’s rights can be barred in certain situations. Also, probate affidavits are often completed early in the process based on limited information, and errors can appear if the person signing the affidavit does not have the marriage records, separation history, or court orders.

Key Requirements

  • Legal marital status at death: Whether there was a valid marriage and whether it was ended by an absolute divorce or annulment before death.
  • Whether spouse rights are barred: Even if still married, North Carolina law can bar a spouse from intestate inheritance, elective share, and other spouse benefits if certain misconduct or court orders apply.
  • Correct probate forum and timely spouse claims: Spouse-related claims (like an elective share) are handled as estate proceedings before the Clerk of Superior Court, and some claims have strict deadlines.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the probate paperwork for the decedent states “not married,” but there was no formal divorce. Under North Carolina practice, that statement may reflect (1) an error by the person who signed the affidavit, or (2) a belief that no one qualifies as a “surviving spouse” with probate rights because a statutory bar applies (for example, a divorce from bed and board or abandonment). Because spouse status affects who inherits and who has priority to serve as personal representative, it is important to clarify the basis for the “not married” statement in the file with the Clerk of Superior Court.

Why an affidavit might say “not married” even without an absolute divorce

  • Clerical error or assumption: Many affidavits are completed quickly using family-provided information. If the couple lived apart for years, someone may have assumed a divorce happened.
  • Divorce from bed and board (legal separation by court order): North Carolina recognizes a court-ordered “divorce from bed and board,” which does not end the marriage but can bar estate rights under the spousal forfeiture statute.
  • Abandonment or certain adultery-related separation: Under North Carolina’s spousal forfeiture statute, certain conduct (including willful abandonment without just cause, or voluntary separation while living in adultery without condonation) can bar inheritance-type rights even though the marriage technically still exists. These issues are fact-specific and often disputed.
  • Waiver in a written agreement: A spouse can waive elective share rights in a written waiver (often in a prenuptial or postnuptial agreement). A waiver does not make the parties “not married,” but it can lead someone to describe the situation as “no spouse claim” in shorthand.
  • Void/invalid marriage issues: If the marriage was not valid (for example, because of a prior undissolved marriage), someone may treat the decedent as “not married” for probate purposes. These situations require careful document review.

Process & Timing

  1. Who files: Typically the personal representative (executor/administrator) opens the estate, but a surviving spouse may also need to file a petition to protect spouse rights. Where: The Clerk of Superior Court in the North Carolina county where the estate is administered. What: A request to correct or clarify the marital-status information in the estate file, and (if applicable) a spouse petition such as an elective share petition. When: If an elective share may be needed, the deadline is generally within six months after letters testamentary or letters of administration are issued.
  2. Next step: Gather documents that usually control the question (marriage certificate, any divorce judgment, any divorce-from-bed-and-board order, any separation agreement, and any prenuptial/postnuptial waiver). Then compare them to what was stated in the affidavit and what the estate is doing (for example, who is listed as heirs).
  3. Final step: If the affidavit is wrong, the estate can typically submit a corrected statement or additional sworn information to the clerk. If the estate is taking the position that spouse rights are barred, the issue may need to be resolved as an estate proceeding before the clerk, sometimes after notice and a hearing.

Exceptions & Pitfalls

  • “Still married” does not always mean “still inherits”: North Carolina’s spousal forfeiture rules can bar key spouse rights even without an absolute divorce.
  • Do not ignore the affidavit: If the file incorrectly lists “not married,” it can affect who gets notice, who is treated as an heir, and who has priority to serve as personal representative.
  • Deadline traps: Waiting to sort out spouse status can cause a missed elective share deadline under N.C. Gen. Stat. § 30-3.4.
  • Proof problems: Claims like abandonment or adultery-related separation are fact-driven and often contested. The outcome can turn on documents, timelines, and whether the spouses reconciled or “condoned” conduct.

Conclusion

In North Carolina, a probate affidavit may say the decedent was “not married” even without an absolute divorce because the person completing it believed there was no spouse with probate rights (for example, due to a divorce from bed and board, abandonment/adultery-related forfeiture, waiver, or a validity issue), or because the affidavit is simply wrong. The most important next step is to promptly confirm the marriage and any court orders or waivers in the estate file with the Clerk of Superior Court, and if an elective share may apply, file the petition within six months after letters are issued.

Talk to a Probate Attorney

If there is conflicting probate paperwork about whether a decedent was married, it can affect who inherits, who receives notice, and what deadlines apply for spouse claims. Our firm has experienced attorneys who can help review the estate file, identify what North Carolina law treats as a “surviving spouse” for probate purposes, and map out the next steps and timelines. 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.