Sep172025
Probate Q&A Series

What steps do I take to enforce a spousal allowance while disputing a beneficiary designation? – North Carolina

Short Answer

In North Carolina, you can apply for a spousal year’s allowance (and a child’s allowance, if eligible) through the Clerk of Superior Court without opening a formal estate. The allowance is paid from the decedent’s personal property and has priority over general creditors. Life insurance with a named beneficiary usually passes outside the estate, so disputing that designation is a separate track: promptly notify the insurer, ask for a hold or interpleader, and be prepared to file in court if needed.

Understanding the Problem

In North Carolina, can a surviving spouse claim a year’s allowance through the Clerk of Superior Court while at the same time challenging a life insurance policy that still names an ex-spouse? Here, no formal estate is open and the spouse also wants a child’s allowance for a minor child.

Apply the Law

North Carolina provides two key supports after death: (1) a spousal year’s allowance and (2) a child’s year’s allowance. These are assigned by the Clerk of Superior Court and come from the decedent’s personal property. For decedents dying on or after March 1, 2024, a child’s allowance is $10,000 for each qualifying child under 21. The forum is the Clerk of Superior Court in the county where venue would be proper for estate administration. Timing depends on whether a personal representative (PR) has been appointed. Life insurance with a named beneficiary generally transfers outside probate; contesting that designation typically proceeds with the insurer and, if necessary, in court.

Key Requirements

  • Eligibility: The surviving spouse may claim a $60,000 year’s allowance; each qualifying child may claim a year’s allowance (for deaths on/after March 1, 2024, $10,000 for children under 21).
  • Where to file: File an Application and Assignment of Year’s Allowance (AOC-E-100) with the Clerk of Superior Court in the proper county.
  • Timing: If a PR has been appointed, apply within six months after letters issue; for earlier dates of death, older one-year filing rules may apply. Procedures and deadlines can change.
  • Funding source: Allowances are satisfied from the decedent’s personal property. The decedent’s portion of a joint survivorship bank account may be tapped to fund the allowance if estate assets are otherwise insufficient.
  • Priority/exemptions: Allowances are assigned before general unsecured claims and are protected from most creditor liens. In practice, the spouse’s allowance is satisfied before children’s allowances if funds are limited.
  • Life insurance: Proceeds payable to a named beneficiary usually are not estate assets and do not fund allowances unless payable to the estate; disputes run on a separate litigation track.

What the Statutes Say

Analysis

Apply the Rule to the Facts: As the surviving spouse with a minor child and no estate opened, you can file AOC-E-100 with the Clerk to request your $60,000 spousal allowance and a child’s allowance. The joint checking account likely passed to the survivor, but a proportionate share of the decedent’s interest can still be applied to the allowances if other estate assets are insufficient. The life insurance naming an ex-spouse typically passes outside the estate; disputing that designation requires promptly notifying the insurer and, if necessary, pursuing court relief while the allowance proceeds separately at the Clerk’s office.

Process & Timing

  1. Who files: Surviving spouse (and for the child’s allowance, the surviving spouse or other proper representative). Where: Clerk of Superior Court in the county where the decedent’s estate would be administered in North Carolina. What: AOC-E-100 (Application and Assignment of Year’s Allowance). When: If a PR has been appointed, file within six months after letters; for earlier deaths, a one-year deadline may apply. Ask the Clerk about any local scheduling requirements.
  2. For funding: list personal property available (e.g., bank funds, vehicles). If assets are short, the Clerk can assign what is available and note a deficiency. A PR, if later appointed, can use statutory tools to recover additional funds, including a portion of survivorship accounts.
  3. For the life insurance dispute: immediately send the insurer a written notice with the divorce decree and request a hold or interpleader. If a change-of-beneficiary form exists but is inaccessible (e.g., encrypted in a joint account), seek a court order or subpoena to obtain it. If the policy is an employer plan, be prepared for ERISA rules that typically require payment to the named beneficiary; remedies may include a constructive trust after payout.

Exceptions & Pitfalls

  • Employer-provided life insurance often falls under federal ERISA, which can require payment to the named beneficiary despite a divorce; state-law challenges may shift to seeking a constructive trust after payment.
  • Life insurance payable to a named beneficiary usually is not available to fund allowances unless payable to the estate; focus first on estate personal property and, if needed, the decedent’s portion of survivorship accounts.
  • The spouse’s allowance is satisfied before children’s allowances if funds are limited; the Clerk may prorate if necessary and delay distributions until eligibility is clear.
  • Joint accounts not governed by the survivorship statute may involve different tracing rules; confirm the account type and documentation.
  • Minor child payments are routed by statute: often to the surviving parent for the child’s benefit, or to a guardian/clerk if required.
  • If a PR exists, deliver a copy of your allowance application to the PR and watch the six-month window; some enforcement tools (subpoenas, recovery actions) typically require a PR or a separate civil action.

Conclusion

In North Carolina, you may claim a $60,000 spousal allowance and a separate child’s allowance through the Clerk of Superior Court, funded from the decedent’s personal property and protected from general creditors; survivorship accounts can be tapped proportionally if needed. At the same time, dispute the life insurance designation by promptly notifying the insurer, requesting a hold or interpleader, and filing in court if necessary. Next step: file AOC‑E‑100 with the Clerk in the proper county—and if a PR is appointed, do so within six months of the letters.

Talk to a Probate Attorney

If you’re dealing with a North Carolina year’s allowance while also contesting a life insurance beneficiary, 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.

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.