What is the Spousal Allowance?

The law reserves great respect to the bond of marriage and the rights that flow from it. The spousal privilege, if invoked, can immunize a couple from being forced to testify about private conversations they had with one another. The Elective Share essentially prohibits one spouse from writing the other out of their will. Divorce laws in North Carolina, as in many states, require that a couple live separately for a year before they are eligible to even file for the absolute divorce, in order to prove to the court that the marital relationship is over and will not reignite.

In addition to these protections, North Carolina's estate laws provide another benefit given to those within the bond of marriage: the spousal allowance. In the event that one partner dies and leaves a surviving spouse behind, the law provides that the surviving spouse is automatically eligible for a one-year, $30,000 allowance from the deceased's estate. The theory behind this law is that spouses of either gender come to depend on one another throughout a marriage, and in the tragic event that one of them loses their partner, the surviving member should be entitled to a monetary allowance from their partner's estate regardless of what debts the deceased owed.

That is right-the spousal allowance is exempt from creditors, liens and other judgments. If, however, the deceased executed a valid will before they died, the portion of their estate they bequeathed to their spouse in the will is decreased by the amount of the spousal allowance.

In the legal world, there are two (2) different kinds of property: real and personal. Real property consists of land and buildings, while personal property consists of everything else-bank accounts, cars, family heirlooms, stocks and bonds held in the deceased's name, etc. The spousal allowance is paid from the deceased spouse's personal property.

If the deceased's personal property is located in a different county besides the one in which the deceased lived at the time of their death, an extra step may be necessary, but the spousal allowance is still available. In such a case the surviving spouse or their personal representative can apply for the allowance at the clerk of court or magistrate local to where the personal property is located.

In addition, the spouses' children can be eligible for a one-year allowance under certain circumstances. Children under the age of 18 when one of their parents die are eligible for a one-year allowance of $5,000. Unlike the spousal allowance, this amount does not decrease whatever the child inherits from the deceased's will. However, it is also exempt from creditors of the deceased.

Adopted children, or children with whom the surviving wife was pregnant at the other spouse's death, are also eligible for the children's allowance. Other surviving children of the deceased who are entitled to receive the allowance also include:

• Children who are less than age 22 and full-time students
• Children who are less than age 21 who have been declared mentally incompetent
• Children who are less than 21 who are completely disabled
• Any other person under the age of 18 who lived with the deceased at the time of their death, for whom the deceased acted as a stand-in parent or guardian

Both the spousal and children's allowances are available regardless of whether or not the surviving spouse petitions to receive an Elective Share. As mentioned at the beginning of this article, the Elective Share works to ensure that a spouse cannot completely disinherit their surviving spouse.

If the deceased spouse's personal property is insufficient to provide the allowance amount, the clerk of superior court will enter a judgment for the difference against the estate's personal representative. A "personal representative," also referred to as the estate's executor or administrator, is the person appointed to oversee the distribution of a deceased person's estate. If the deceased did not leave a will, then the court will appoint a person to act in this; if the person made a will, they will usually identify a person they want to act as representative in the will. The deficiency judgment against the estate representative will instruct him or her to deliver the deficient amount to the surviving spouse if further personal property is discovered.

If you are facing the administration of a loved one's estate, please contact Arnold & Smith, PLLC for a consultation with one of our experienced family law attorneys. We are located in uptown Charlotte, Mooresville, and Monroe North Carolina and provide zealous representation for clients in matters of family law, personal injury, workers' compensation and criminal defense.