Short Answer

In North Carolina, a surviving spouse is entitled to a $60,000 year’s allowance from the decedent’s personal property. This allowance is typically paid before most creditor claims and before intestate distribution, and it is in addition to the spouse’s intestate share. It reduces the pool of probate personal property to be divided among heirs, but it does not eliminate valid liens on specific assets.

Understanding the Problem

North Carolina: As a surviving spouse administering an intestate estate, can you claim a $60,000 personal property (year’s) allowance, and if so, how does it change what you and the decedent’s biological child receive? One salient fact: the decedent left no will.

Apply the Law

North Carolina law provides a fixed year’s allowance to a surviving spouse, paid from the decedent’s personal property, to support the spouse during the first year after death. The Clerk of Superior Court assigns the allowance on application. The allowance is generally satisfied before intestate distribution and is in addition to an intestate share. The main forum is the Clerk of Superior Court in the county where the decedent was domiciled. If a personal representative has been appointed, recent statutory updates require filing the application within six months after letters are issued (procedures and deadlines can change, so confirm locally).

Key Requirements

• Eligible spouse: You must be a lawful surviving spouse who has not forfeited or waived rights (for example, by certain conduct or written renunciation).
• Amount and source: The allowance is $60,000, paid from the decedent’s probate personal property (money, accounts, vehicles, stocks; not real estate).
• Priority and effect: It is typically assigned before most creditor claims and before intestate distribution; it reduces the personal property available to divide among heirs.
• Process: File an Application and Assignment of Year’s Allowance (AOC‑E‑100) with the Clerk of Superior Court; if a personal representative exists, deliver a copy of your application to that person.
• Timing: If letters have been issued, apply within six months of issuance; otherwise, apply promptly (local practice varies and procedures can change).
• Secured liens remain: Assigning a vehicle or other encumbered item under the allowance does not wipe out the lender’s lien.

What the Statutes Say

• North Carolina Gen. Stat. § 30-15 (Spousal year’s allowance) – Establishes a spouse’s right to an allowance paid from personal property.
• North Carolina Gen. Stat. § 30-18 (Property used to satisfy allowance) – Limits satisfaction of the allowance to personal property of the estate.
• North Carolina Gen. Stat. § 30-20 (Assignment by Clerk) – The Clerk of Superior Court assigns the allowance and identifies the property used.
• North Carolina Gen. Stat. § 29-14 (Intestate share of surviving spouse) – Describes how the spouse’s intestate share is calculated after allowances.

Analysis

Apply the Rule to the Facts: As the surviving spouse and administrator of an intestate estate, you may claim a $60,000 year’s allowance from probate personal property such as bank accounts, brokerage assets, and the decedent’s interest in titled vehicles. This is paid before splitting the remaining estate with the biological child and is in addition to your intestate share. Life insurance and retirement accounts with named beneficiaries usually pass outside the estate and may not fund the allowance; vehicle loans and other liens remain attached even if a vehicle is assigned to you.

Process & Timing

1. Who files: The surviving spouse. Where: Clerk of Superior Court in the decedent’s county of domicile in North Carolina. What: AOC‑E‑100 (Application and Assignment of Year’s Allowance). If a personal representative has been appointed, deliver a copy of your application to that person. When: If letters of administration have issued, file within six months of issuance; otherwise, apply promptly (local practice varies).
2. The Clerk reviews eligibility and available personal property, then signs the assignment. Expect the Clerk to request supporting statements or titles; certified copies of the assignment are used to collect assets (e.g., banks, DMV for vehicles).
3. After the allowance is assigned, the administrator gathers any remaining assets, pays allowed claims in order of priority, and distributes the rest by intestacy, excluding the stepchild from heirship.

Exceptions & Pitfalls

• Disqualifiers: A spouse who waived or renounced the allowance, or who committed certain acts barring property rights, may not qualify.
• Wrong asset pool: The allowance can be satisfied only from probate personal property; real estate and nonprobate transfers (most beneficiary-designated accounts, survivorship accounts) generally do not fund it.
• Liens survive: Assigning an encumbered vehicle under the allowance does not remove the lender’s lien; plan for payoff or refinancing.
• Children’s allowances: If eligible children apply, the Clerk may need to prorate when estate personal property is insufficient, but the spouse’s allowance is typically satisfied first.
• Notice missteps: When a personal representative is in place, deliver a copy of your application to that person to avoid delays or challenges.

Talk to a Probate Attorney

If you’re dealing with a North Carolina intestate estate and need to secure a spouse’s year’s allowance and understand its impact on distribution, our firm has experienced attorneys who can help you understand your options 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.