What Happens if a Spouse Dies Without a Will in NC?

Spouse Dies Without a Will in NC – What Now?

A common question we receive is “what happens if a spouse dies without a will in NC?” Well, it depends on a few different factors, including the make-up of the decedent’s family. Most assets owned by a married couple will pass to the surviving spouse for one of a few reasons:

1. The asset was owned jointly with rights of survivorship (bank accounts, some investment assets);
2. The asset was beneficiary designated to the surviving spouse (401k and other retirement plans, life insurance); or
3. The marital home (owned tenancy by the entireties – a marital ownership designation), which passes to the surviving spouse automatically.

When a spouse dies without a will in NC, any other assets that do not fit into the ownership classifications set out above will generally pass as follows, depending on the decedent’s family structure:

Spouse But No Descendants or Parents

If the decedent was married, but had no living children or parents at the time of their death, the surviving spouse will be entitled to receive the entire estate under the rules of intestacy in North Carolina.

Spouse and One Child, But No Parents

If the decedent was married and had one natural or adopted child, the surviving spouse will receive the 1/2 of the intestate real estate, the first $60,000 of personal property assets of the estate, and 1/2 the remaining personal property assets. The surviving child will get the remainder (1/2 of the intestate real estate, and whatever personal property remains) under the rules of intestacy in North Carolina. Parents don’t matter if there is a surviving spouse and at least one surviving child.

Spouse and Two or More Children

If the decedent was married and had two or more natural or adopted children, the surviving spouse will receive the 1/3 of the intestate real estate, the first $60,000 of personal property assets of the estate, and 1/3 of the remaining personal property assets. The surviving children will split 2/3 of the real estate and the remaining personal property assets in equal shares under the rules of intestacy in North Carolina. Again, surviving or predeceased parents do not matter to the equation if there is a surviving spouse and at least one surviving child.

Spouse and Parent(s)

If the decedent was married, had no children, but was survived by at least one parent, the surviving spouse will receive 1/2 of the intestate real estate, the first $100,000 of personal property assets of the estate, and 1/2 of the remaining personal property assets. The surviving parent(s) would receive 1/2 of the intestate real estate and whatever personal property assets remained under the rules of intestacy in North Carolina. The surviving parents really throw a wrench into the wheel for the surviving spouse in an the absence of an estate plan.

As you can see, there really isn’t a great outcome when a spouse dies without a will in NC unless there are no probate assets that survive him or her. Most people would agree that they would prefer for the surviving spouse to receive all of their assets after they’re gone, but the only way to make sure that happens is to create your own estate plan.