Monroe, NC asked in Estate Planning and Probate for North Carolina

Q: Is $60,000 one-year spousal allowance allowed to be deducted before division of estate between beneficiaries per will?

Mother passed away in May. Her will states that "her individual" (not joint) property is to be divided between current husband and 2 adult children from a previous marriage equally. The $60,000 spousal allowance off the top reduces adult children portions making spouses portion that much more. North Carolina statutes Article 4 30-31 states maximum spousal allowance up to $60,000 but not more than 50% of average annual net income of decedent based on 3 years prior to death. Also, per Article 4 30-15 spousal allowance to be deducted from his 1/3 share if there is a will (only comes off top if there was no will). Is that the correct understanding or are there more stipulations or other circumstances that factor into the use of spousal allowance?

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2 Lawyer Answers
Amanda Bowden Johnson
Amanda Bowden Johnson pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Jacksonville, NC
  • Licensed in North Carolina

A: Considering there is a surviving spouse who arguably should have gotten everything, one would think you'd be grateful you are getting anything especially if the amount of potential reduction is a mere $60,000. Of course, if you wanna make sure you grub up as much as possible for yourself - just hire a local estate attorney.

Ashley Kevitt
Ashley Kevitt
  • Estate Planning Lawyer
  • Chapel Hill, NC

A: I believe you are confusing two separate options. A year’s allowance allows for the surviving spouse to receive the first $60,000 before paying any debts or other beneficiaries (with some exceptions).

The elective share allows for the surviving spouse, within 6 months after the estate is opened to possibly claim a larger portion of the deceased spouse’s estate. The length of marriage determines how much of a percentage to which the surviving spouse is so entitled. If the couple were married for less than five years, 15%. If the couple were married for less than 10 years, 25%. If the couple were married for less than 15 years, 33%, and if the couple were married 15 years or more, then 50%.

I would suggest you consult an estate attorney to determine the particular circumstances and options in your matter.

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