Feb32026
Probate Q&A Series

If we signed an equitable distribution agreement but never got a divorce decree, do I still count as the surviving spouse for inheritance and estate rights? – North Carolina

Short Answer

Usually, yes. In North Carolina, a signed equitable distribution agreement does not end a marriage by itself, so if no absolute divorce decree was entered before death, the person who was still legally married generally remains the “surviving spouse” for estate purposes.

However, certain conduct (like abandonment or adultery in specific circumstances) or a valid written waiver in the agreement can bar or limit inheritance rights. The domestic-violence protective order may affect safety and contact issues, but it does not automatically terminate spouse status for inheritance.

Understanding the Problem

In North Carolina probate, the key question is whether a person is still legally married at the time of the other spouse’s death, even if the couple signed an equitable distribution agreement and lived separately. The decision point is whether an absolute divorce decree (or another legal event that bars spousal rights) happened before death, because that determines whether the surviving-spouse protections in the estate still apply.

Apply the Law

North Carolina generally treats a person as a “surviving spouse” for inheritance and estate rights if the marriage was still legally in place at death. A separation, a protective order, or a signed agreement about property division may change what property is available or what rights were waived, but those things do not automatically replace a divorce decree. Even when someone qualifies as a surviving spouse, North Carolina law can still bar specific rights if certain fault-based grounds exist or if the spouse signed an enforceable waiver.

Key Requirements

  • No absolute divorce before death: If the court never entered an absolute divorce decree before the death, the marriage usually still exists for probate purposes.
  • No statutory bar to spousal rights: A surviving spouse can lose estate rights if a statutory “bar” applies (for example, divorce from bed and board, certain abandonment, or certain adultery situations).
  • No enforceable waiver of estate rights: A separation/equitable distribution agreement can include waivers (often of elective share and allowances). If the waiver is valid and enforceable, the person may still be a spouse but may have fewer (or no) estate claims.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the couple signed an equitable distribution agreement but never finalized an absolute divorce decree before the death. That usually means the marriage still existed at death, so the surviving spouse status generally remains for North Carolina estate purposes. The next legal questions become (1) whether any statutory bar under N.C. Gen. Stat. § 31A-1 applies based on the separation circumstances, and (2) whether the agreement included a valid waiver of estate rights (such as elective share or year’s allowance) that limits what can be claimed.

Process & Timing

  1. Who files: The personal representative opens the estate; the surviving spouse files any spouse claims. Where: Clerk of Superior Court in the county where the estate is administered in North Carolina. What: A petition for elective share (estate proceeding) if needed; a verified petition for year’s allowance if needed. When: Elective share must be claimed within six months after letters testamentary or letters of administration are issued.
  2. Notice and service: Elective share is handled as an estate proceeding, which typically requires proper service on the personal representative and other required parties. Missing service steps can delay or jeopardize the claim.
  3. Decision and distribution: The clerk determines whether the claimant qualifies as a surviving spouse with rights, whether any waiver/bar applies, and (if applicable) the amount of elective share or allowance to be paid from the estate and certain non-probate transfers included by statute.

Exceptions & Pitfalls

  • “Still a spouse” does not always mean “still entitled to inherit”: North Carolina can bar a spouse’s estate rights for specific reasons, including certain abandonment or adultery situations, or if a divorce from bed and board was obtained. See N.C. Gen. Stat. § 31A-1.
  • Waiver language in the agreement: Many equitable distribution/separation agreements include broad waivers of “all rights” in the other spouse’s estate. A waiver can be enforceable under N.C. Gen. Stat. § 30-3.6, but enforceability can turn on whether it was voluntary and whether there was fair disclosure (or a written waiver of disclosure).
  • Protective order confusion: A domestic-violence protective order can control contact, possession of certain property, and safety planning, but it does not automatically end the marriage for probate purposes. Separate court action is required to obtain an absolute divorce.
  • Deadline traps: Waiting to see what the will says (or waiting for family negotiations) can cause a missed elective share deadline under N.C. Gen. Stat. § 30-3.4.

Conclusion

In North Carolina, signing an equitable distribution agreement does not, by itself, end a marriage. If no absolute divorce decree was entered before death, the surviving spouse status usually remains for inheritance and estate purposes. Even so, estate rights can be reduced or eliminated if a statutory bar applies or if the agreement contains a valid waiver of spousal estate rights. A practical next step is to review the agreement for waiver language and, if an estate is opened, file any needed spouse claim with the Clerk of Superior Court within six months after letters are issued.

Talk to a Probate Attorney

If you’re dealing with a spouse’s death after separation and an equitable distribution agreement, our firm has experienced attorneys who can help explain which surviving-spouse rights still apply and what deadlines control the next steps. Call us today at [CONTACT NUMBER].

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.