What happens if his divorce wasn’t finalized—can his estranged spouse still claim under his estate? — North Carolina

Short Answer

Yes. In North Carolina, if a divorce was not finalized, the estranged spouse is still a “surviving spouse” and can claim from the estate. Depending on the situation, the spouse may receive an intestate share, make a statutory elective share claim, claim a year’s allowance, or elect a statutory life estate in real property. Exceptions apply if the spouse validly waived rights, is disqualified, or misses deadlines.

How North Carolina Law Applies

Legal separation or a pending divorce does not end a marriage. If there is no final divorce judgment, the estranged spouse remains a surviving spouse at death. That status opens several paths to recovery:

If there is no will, the spouse takes an intestate share under North Carolina’s intestacy rules.
If there is a will that leaves little or nothing to the spouse, the spouse can seek a court-ordered elective share—a monetary amount calculated from the decedent’s “Total Net Assets” and the length of the marriage.
The spouse may claim a $60,000 year’s allowance from the decedent’s personal property for one year’s support.
In some cases, the spouse may elect a statutory life estate in a portion of the decedent’s real property owned during the marriage (an alternative to other shares).

Example: A couple separated 18 months ago and began a divorce, but no divorce decree was entered. He dies with a will leaving most assets to adult children. Because the marriage legally continued, his spouse can file for an elective share within the statutory time limit, and also consider a year’s allowance. If there is no valid waiver (such as in a separation agreement) and no disqualifying conduct, the spouse can still recover.

Key Requirements

Marital status: No final divorce judgment; the parties were still legally married at death.
No disqualification: The spouse did not forfeit rights (for example, by certain disqualifying acts) and the marriage was legally valid.
Elective share filing: File within six months after the court issues letters to the estate’s personal representative; the spouse must file during their lifetime.
Year’s allowance: Available to a surviving spouse; timing depends on whether letters were issued (see Process & Timing).
Waivers: No effective written waiver in a premarital, postmarital, or separation agreement that waives spousal rights.

Process & Timing

Confirm marital status: Verify no final divorce decree exists. If still married, the spouse is a “surviving spouse.”
Check for waivers and disqualifiers: Review any premarital, postmarital, or separation agreements for waivers; consider whether any conduct may bar spousal rights.
If no will (intestacy): The spouse’s intestate share applies automatically; no special filing is typically required to receive it, but estate administration is still needed.
If there is a will (elective share option):
1. Deadline: File a petition for elective share within six months after the court issues letters testamentary/administration in the county where the estate is administered. The spouse (or authorized agent/guardian) must file while the spouse is alive.
2. Who is notified: The personal representative and other “responsible persons” who hold or received nonspousal assets are joined and served.
3. Information exchange: The personal representative must provide sufficient asset information (often within two months of the petition) so the clerk can determine “Total Net Assets.”
4. Hearing and order: After notice and hearing, the clerk issues an order stating Total Net Assets, the applicable percentage based on the length of the marriage, credits for property already passing to the spouse, and the elective share amount. The personal representative then satisfies the award (and can seek contributions from others who received assets).
5. Standstill protection: The spouse can seek a “standstill” order to prevent transfers that could frustrate payment.
Year’s allowance ($60,000):
1. How: File an application with the clerk using the AOC form; the allowance comes from personal property of the decedent.
2. Timing: For decedents dying on or after March 1, 2024, there is no time limit unless the court has issued letters—if letters are issued, file within six months after the letters date. Procedures can vary, so confirm with the clerk’s office.
Statutory life estate in real property: A surviving spouse can elect a life estate in a portion of the decedent’s real property owned during the marriage (or a life estate in the dwelling house plus contents). Election and timing rules apply; if you are considering this, consult counsel promptly.

What the Statutes Say

Exceptions & Pitfalls

Waivers in agreements: A premarital, postmarital, or separation agreement may waive the right to an elective share and other spousal benefits if it meets statutory requirements (writing, voluntariness, and fair disclosure or a written waiver of disclosure).
Disqualification: Certain conduct can bar a spouse’s rights (for example, bigamous marriage or specific statutory disqualifications). These are fact‑specific; get legal advice early.
Elective share deadline: Missing the six‑month deadline after letters are issued generally forfeits the elective share.
Must file during spouse’s lifetime: The surviving spouse must assert the elective share while alive; if filed and the spouse later dies, the claim can continue, but if not filed before death, the right is lost.
Standstill orders: If others are moving assets, ask the clerk for a standstill order to preserve the estate and nonprobate assets subject to contribution.
Equitable distribution overlap: Property awarded to the spouse in a pending equitable distribution case after death can count as property “passing” to the spouse for elective share calculations.
Year’s allowance timing update: For deaths on or after March 1, 2024, timing rules changed; procedures and deadlines can vary by county. Confirm with the clerk.

Helpful Hints

Get a certified copy of any divorce file to confirm status; no final judgment means the marriage continued.
Request issuance of letters in the estate promptly to start timelines; then calendar the elective share filing deadline.
Bring agreements to your lawyer: premarital, postmarital, or separation agreements can control rights.
Collect account statements, beneficiary designations, deeds, and life insurance details. Nonprobate assets are considered in elective share math.
If you are the personal representative, coordinate early with the spouse and consider mediation to resolve elective share disputes efficiently.

Sources & References

North Carolina Estate Administration Manual, North Carolina Bar Association, Supplemented 10th Edition (2024): Chapter III (Year’s Allowances), pp. 115–117; Chapter VII (Ascertaining Beneficiaries & Elective Share), pp. 196–203; Chapter XVIII (Estate Proceedings—Elective Share definitions and process), pp. 1080–1082.
North Carolina Fiduciary Litigation Manual, North Carolina Bar Association (2022): Chapter VI (Litigating the Elective Share and Other Marital Rights), pp. 140–158; forms and procedures; appeal standards.
Clerk of Superior Court Procedures Manual (2024), UNC School of Government: Chapter 14 (Year’s Allowance of a Surviving Spouse and Children), pp. 286–295; Elective Share procedures and calculations, pp. 317–336; Additional Year’s Allowance special proceeding, pp. 432–438.

Disclaimer: This article is general information about North Carolina law, not legal advice. Reading it does not create an attorney‑client relationship.

Talk to a Probate Attorney

If you’re dealing with spousal rights after a death where the divorce wasn’t final, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.

What happens if his divorce wasn’t finalized—can his estranged spouse still claim under his estate?: North Carolina Probate