Dec42025
Probate Q&A Series

What evidence should I gather to show a valid marriage for a spouse’s allowance claim? – North Carolina

Short Answer

For a spousal year’s allowance in North Carolina, the clerk of superior court must be satisfied that a valid marriage existed at the time of death. The most important proof is a marriage certificate plus proof that neither spouse was still married to someone else. When the marriage record is unclear or challenged, the clerk may also look at divorce decrees, prior spouse death certificates, identification documents, and sworn statements from people who know the couple’s history.

Understanding the Problem

The question here is: under North Carolina probate law, what evidence can a surviving spouse gather to prove a valid marriage when applying for a spousal year’s allowance from the decedent’s personal property? The issue usually arises when the clerk of superior court cannot easily verify the marriage, there are prior marriages, missing paperwork, or another person disputes that the applicant is a lawful spouse. The focus is on what documents and testimony help the clerk decide whether a qualifying marriage existed at the decedent’s death so a spousal allowance may be awarded.

Apply the Law

North Carolina law gives a qualifying surviving spouse a year’s allowance from the decedent’s personal property, but only if there was a valid marriage that has not been barred or forfeited. The clerk of superior court in the proper county decides entitlement and can require proof of both the marriage and the spouses’ legal capacity to marry. If a personal representative has been appointed, a claim for the standard year’s allowance generally must be filed within six months after letters are issued.

Key Requirements

  • Valid marriage at death: A lawful North Carolina or out-of-state marriage existed between the applicant and the decedent when the decedent died, and it was not void for reasons such as bigamy or lack of capacity.
  • No statutory bar to spousal rights: The spouse has not lost spousal rights by conduct such as certain divorces, abandonment, or bigamy, and has not validly waived or renounced the allowance.
  • Timely, proper application: A verified petition for the allowance is filed with the correct clerk of superior court, with enough supporting information and documents for the clerk to confirm the marriage and assign the allowance.

What the Statutes Say

Analysis

Apply the Rule to the Facts: With no specific facts given, consider two neutral examples. In a straightforward case with a North Carolina marriage license, certificate, and no prior marriages, submitting those records will usually satisfy the clerk that a valid marriage existed. In a more complicated case involving earlier marriages, the clerk will expect additional evidence—such as divorce judgments, death certificates for prior spouses, and sworn statements on a marriage affidavit—to confirm that the decedent and the applicant were free to marry and that no conduct under the spousal-bar statute applies.

Process & Timing

  1. Who files: The surviving spouse (or that spouse’s authorized agent or guardian). Where: The Clerk of Superior Court in the county where venue is proper under North Carolina’s estate venue rules (typically the decedent’s county of domicile). What: A verified “Application and Assignment of Year’s Allowance” (AOC-E-100) with supporting documents showing the marriage and freedom to marry. When: There is generally no fixed outside deadline, but if a personal representative has been appointed, the application must be filed within six months after letters of administration or letters testamentary are issued.
  2. The clerk reviews the petition and attached evidence. If the paperwork clearly shows a valid marriage and no obvious statutory bar, the clerk may assign the allowance without a separate hearing; if anything is unclear or contested, the clerk can require a contested estate proceeding to take testimony and additional proof.
  3. Once satisfied, the clerk enters an order awarding specific personal property or cash as the spouse’s allowance and, if an estate is open, provides a copy of the order to the personal representative so it can be honored from estate assets.

Exceptions & Pitfalls

  • Spousal bars under statute: Evidence that the applicant abandoned the decedent without just cause, obtained or was subject to certain divorces, or knowingly entered a bigamous marriage can defeat a claim to a spousal allowance even if a ceremony took place.
  • Bigamy and prior marriages: If the decedent was still legally married to someone else when the later marriage occurred, the later marriage is void. The clerk may require certified divorce decrees or prior spouse death certificates to rule out bigamy.
  • Missing or defective licenses: North Carolina case law recognizes that a marriage can still be valid even if the license process was flawed, as long as the ceremony met legal requirements. In those situations, the clerk may look closely at the ceremony details and request affidavits from officiants or witnesses.
  • Common-law misunderstandings: North Carolina does not create common-law marriages, so long-term cohabitation alone will not qualify someone as a surviving spouse. Proof must tie back to a legally recognized marriage (here or in another state that allowed common-law marriage).
  • Incomplete applications: Submitting an application without attaching marriage records, identity documents, or explanations of prior marriages can delay or derail the allowance. A thorough packet that anticipates questions about capacity, prior spouses, and separation helps prevent problems.

Conclusion

To support a spouse’s year’s allowance claim in North Carolina, the key is proving a valid, unbarred marriage existed when the decedent died. That usually means providing a marriage certificate plus clear proof that any earlier marriages for either party ended by death or divorce, along with identification documents and, when needed, sworn affidavits about the relationship. The next practical step is to gather those records and file a verified allowance application with the appropriate Clerk of Superior Court within six months if an estate has already been opened.

Talk to a Probate Attorney

If a surviving spouse needs to prove a valid marriage for a North Carolina year’s allowance claim and there are questions about prior marriages, separation, or missing records, our firm has experienced probate attorneys who can help explain the options and timing. 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 any specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If there is a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.