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by Lawyers Mutual |

Statutory Changes to the Time Period for Making a Claim for the Year’s Allowance for Surviving Spouses in Decedent’s Estates

 North Carolina allows a surviving spouse to petition for a year’s allowance in the amount of $60,000. This allowance is paid out of the personal property in the estate and is intended to provide a means of support for a surviving spouse during an estate administration. Under the existing statutory framework (NCGS § 30-16), the petition must be filed within one year of the death of the deceased spouse. The North Carolina legislature has repealed NCGS § 30-16, effective March 1, 2024.  NCGS § 30-15(b) now provides: “There is no time limitation on bringing a claim for an allowance except that, if a personal representative has been appointed for the decedent's estate, the claim must be made within six months after the issuance of letters testamentary or letters of administration.”

Note that, while the one-year time limitation is removed, there is a six-month limitation period where letters testamentary or letters of administration have been issued. The surviving spouse must make the claim for the year’s allowance within six months of the issuance of letters. That date might be different from the date of the order authorizing issuance of letters. If no letters are issued, there is no time limitation, except that a surviving spouse must make the claim within his or her lifetime.

Practitioners should be careful not to be lulled into a false sense of security because of the removal of the one-year limitation period. When representing a surviving spouse, you will need to determine if and when letters testamentary or letters of administration have been issued. If so, the allowance must be claimed within six months of the date of issuance.

There are other changes to the year’s spousal allowance and the child’s allowance. In particular, the new statute changes the priorities in the payment of the spouse’s allowance and the child’s allowance. Meredith Smith at the UNC School of Government explained these changes in her February 9, 2024 post. For decedents dying on or after March 1, 2024, the spouse is given priority in cases where there is not sufficient personal property in the estate to satisfy both allowances.

Practitioners also need to be aware that, as a general rule, you may not use the proceeds from the sale of real estate to satisfy a deficiency in the allowance. NCGS 30-18 makes clear that the allowance is to be satisfied out of the personal property of the estate. The only exception to this general rule is where the heirs and the estate agree, by private contract, to pay a deficiency out of real estate sale proceeds after all debts of the estate have been satisfied. Estate of Giddens, 270 N.C. App. 282, 841 S.E.2d 302 (2020).

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