Short Answer

In North Carolina, if your spouse died without a will (intestate), the law decides who inherits. As the surviving spouse, you share the estate with the decedent’s children; your exact share depends on how many children there are and the type of property. To claim assets, collect any non-probate assets directly (like payable-on-death accounts), and open an estate with the Clerk of Superior Court to be appointed administrator for probate assets. You may also claim a $60,000 spousal year’s allowance from personal property.

Understanding the Problem

In North Carolina, how do I, as the surviving spouse, claim my share when my spouse died without a will, had children from a prior relationship, and I live in a different state? The decision point is whether assets pass outside probate or require opening an estate with the Clerk of Superior Court, because your inheritance and process depend on that split.

Apply the Law

When someone dies without a will in North Carolina, intestate succession controls who inherits. A surviving spouse’s share depends on whether the decedent left one child or two or more children, and whether the property is personal property (cash, accounts, vehicles) or real property (land/house). Some assets transfer outside of probate by beneficiary designation or survivorship; others require a court-appointed administrator. The main forum is the Clerk of Superior Court in the county where the decedent was domiciled. A spousal “year’s allowance” of $60,000 can be claimed from personal property; it is available in addition to an intestate share and can be faster to obtain. Procedures and deadlines can vary, especially for creditor notices and allowances.

Key Requirements

• Determine what is probate vs. non‑probate: Beneficiary‑designated accounts, joint accounts with right of survivorship, and insurance typically pass directly; solely‑titled assets usually require probate.
• Calculate the spouse’s intestate share: With one child, the spouse takes the first $60,000 of personal property and one‑half of the remainder, plus a one‑half interest in real property; with two or more children, the spouse takes the first $60,000 of personal property, one‑third of the remainder, and a one‑third interest in real property.
• Open the estate if needed: Apply with the Clerk of Superior Court to be appointed administrator to collect and distribute probate assets and handle creditor claims.
• Consider the spousal year’s allowance: A $60,000 allowance from personal property can be assigned by the Clerk; it can expedite access to funds and has priority over most unsecured creditors.
• Use small‑estate options when eligible: If personal property is under the statutory thresholds, you may use collection by affidavit; summary administration is only available when the spouse is the sole heir (not available if the decedent has children).
• Out‑of‑state issues: Venue is based on where the decedent was domiciled in North Carolina; if the decedent was domiciled elsewhere but owned NC assets, ancillary procedures or direct delivery to an out‑of‑state representative may apply.

What the Statutes Say

• North Carolina Gen. Stat. § 29-14 (Surviving spouse’s share in intestacy) – Sets the spouse’s fractional share based on number of children and type of property.
• North Carolina Gen. Stat. § 30-15 (Spousal year’s allowance) – Allows a $60,000 allowance from personal property.
• North Carolina Gen. Stat. § 28A-25-1 (Collection of personal property by affidavit) – Provides a simplified collection process for small estates.
• North Carolina Gen. Stat. § 28A-28-1 (Summary administration) – Available when the surviving spouse is the sole heir or devisee.

Analysis

Apply the Rule to the Facts: Your spouse died intestate and had children from a prior relationship. Under North Carolina’s intestacy rules, your share depends on whether there is one child (you receive the first $60,000 of personal property and one‑half of the remainder, plus one‑half of any real property interest) or two or more children (you receive the first $60,000 of personal property and one‑third of the remainder, plus one‑third of any real property interest). You can collect non‑probate assets directly; for probate assets, seek appointment as administrator through the Clerk of Superior Court in the decedent’s county of domicile, even if you live out of state. Consider claiming the $60,000 year’s allowance from personal property to access funds sooner.

Process & Timing

1. Who files: The surviving spouse (or another eligible heir). Where: Clerk of Superior Court in the North Carolina county where the decedent was domiciled. What: Apply for Letters of Administration (AOC‑E‑202); if eligible for small estate, use Collection by Affidavit; to expedite personal property, file Application and Assignment of Year’s Allowance (AOC‑E‑100). When: File as soon as you identify probate assets; allowance timing can be critical if a personal representative is appointed.
2. After appointment, open an estate account, notify known heirs, and publish/serve notice to creditors as required. Expect a creditor claim period before distributions; timing can vary by county and procedure.
3. Collect assets, pay valid claims and expenses, then distribute according to intestacy shares. File required inventories and accountings with the Clerk and obtain closing approval.

Exceptions & Pitfalls

• Summary administration is not available if the decedent has children—you are not the sole heir.
• Small‑estate collection has dollar limits and excludes many non‑probate assets; if assets exceed limits, switch to full administration.
• Non‑probate assets pass outside the estate, but certain jointly held funds can be reached to pay estate debts in limited circumstances; keep records.
• If the decedent was not domiciled in North Carolina but owned NC assets, you may need ancillary steps or to coordinate with an out‑of‑state personal representative.
• Out‑of‑state spouses can generally serve as administrator, but bond or local agent requirements may apply; ask the Clerk about local practice.

Talk to a Probate Attorney

If you’re dealing with an intestate estate and need to claim your share as a surviving spouse, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at .

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.