Article 1. Dissent from Will. [Repealed]

§§ 30-1 through 30-3. [Repealed]

Repealed by Session Laws 2000-178, s. 1, effective January 1, 2001, and applicable to estates of decedents dying on or after that date.

Cross References.

As to right of elective share, see G.S. 30-3.1 et seq.

Article 1A. Elective Share.

§ 30-3.1. Right of elective share.

  1. Elective Share. —  The surviving spouse of a decedent who dies domiciled in this State has a right to claim an “elective share”, which means an amount equal to (i) the applicable share of the Total Net Assets, as defined in G.S. 30-3.2(4) , less (ii) the value of Net Property Passing to Surviving Spouse, as defined in G.S. 30-3.2(2c). The applicable share of the Total Net Assets is as follows:
    1. If the surviving spouse was married to the decedent for less than five years, fifteen percent (15%) of the Total Net Assets.
    2. If the surviving spouse was married to the decedent for at least five years but less than 10 years, twenty-five percent (25%) of the Total Net Assets.
    3. If the surviving spouse was married to the decedent for at least 10 years but less than 15 years, thirty-three percent (33%) of the Total Net Assets.
    4. If the surviving spouse was married to the decedent for 15 years or more, fifty percent (50%) of the Total Net Assets.
  2. Repealed by Session Laws 2013-91, s. 1(d), effective October 1, 2013, and applicable to estates of decedents dying on or after October 1, 2013.
  3. Repealed by Session Laws 2009-368, s. 1, effective August 27, 2009, and applicable to decedents dying on or after October 1, 2009.

History. 2000-178, s. 2; 2003-296, s. 1; 2009-368, s. 1; 2013-91, s. 1(d).

Cross References.

As to intestate succession, see G.S. 29-1 et seq.

As to abolition of dower and curtesy, see G.S. 29-4 .

For provision that a decedent’s half of community property is not subject to the surviving spouse’s right to petition for an elective share, see G.S. 31C-3 .

Editor’s Note.

Session Laws 2000-178, ss. 1 and 2, effective January 1, 2001, and applicable to estates of decedents dying on or after that date, repeal G.S. 30-1 to 30-3, relating to the surviving spouse’s right to dissent from his or her deceased spouse’s will, and enact this article, relating to the right to claim an elective share. Case notes from repealed G.S. 30-1 to 30-3 have been placed under G.S. 30-3.1 to 30-3.6, as appropriate.

Effect of Amendments.

Session Laws 2009-368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009, in the introductory language of subsection (a), in the first sentence, inserted “Net”, and substituted “G.S. 30-3.2(2c)” for “G.S. 30-3.3(a)”; in subsection (b), substituted “who are not lineal descendants of the decedent’s marriage to the surviving spouse” for “by a prior marriage”; and deleted subsection (c), related to death taxes.

Session Laws 2013-91, s. 1(d), effective October 1, 2013, rewrote subdivisions (a)(1) through (a)(3); added subdivision (a)(4); and deleted former subsection (b), which read: “Reduction of Applicable Share. — In those cases in which the surviving spouse is a second or successive spouse, and the decedent has one or more lineal descendants surviving who are not lineal descendants of the decedent’s marriage to the surviving spouse but there are no lineal descendants surviving by the surviving spouse, the applicable share as determined in subsection (a) of this section shall be reduced by one-half.” For applicability, see editor’s note.

Legal Periodicals.

For discussion of prior law, see 11 N.C.L. Rev. 274 (1933); 23 N.C.L. Rev. 380 (1945).

For note on dissent by incompetent widow through her guardian, see 35 N.C.L. Rev. 520 (1957).

For note on constitutionality of husband’s right to dissent from wife’s will, under former law, see 41 N.C.L. Rev. 311 (1963).

For case law survey on devolution of property, see 41 N.C.L. Rev. 432 (1963).

For note, “Contracts to Devise — Effect of Excluded Forced Heirs,” see 47 N.C.L. Rev. 905 (1969).

For note, “Does North Carolina Law Adequately Protect Surviving Spouses?,” see 48 N.C.L. Rev. 361 (1970).

For article, “Transferring North Carolina Real Estate Part I: How the Present System Functions,” see 49 N.C.L. Rev. 413 (1971).

For note on a surviving spouse’s right to dissent, under prior law, see 16 Wake Forest L. Rev. 251 (1980).

For note on the right of surviving spouse to dissent, under prior law, from deceased spouse’s will when survivor receives less than an intestate share of deceased’s net estate, see 12 N.C. Cent. L.J. 511 (1981).

For comment, “The North Carolina Dissent Statutes: The Seeds of Inequities Germinate . . .,” see 8 Campbell L. Rev. 449 (1986).

For comment, “The Uniform Probate Code’s ‘Augmented Estate’ Concept: A Remedy for the North Carolina Dissent Statute,” see 12 Campbell L. Rev. 425 (1990).

For article, “A Spouse’s Right to Control Assets During Marriage: Is North Carolina Living in the Middle Ages?,” see 18 Campbell L. Rev. 203 (1996).

For article, “North Carolina’s New Elective Share Statute: Much Ado About Nothing?,” see 36 Wake Forest L. Rev. 795 (2001).

For article, “The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina,” see 87 N.C.L. Rev. 1869 (2009).

CASE NOTES

Analysis

I.Decisions under Current Law

Waiver In Pre-Marital Agreement. —

Decedent’s widow was not entitled to an elective share of the decedent’s estate because the express language of the parties’ pre-marital agreement showed the widow voluntarily waived any right to claim a spousal elective share of the decedent’s separate property, and stated the agreement was binding upon and inured to the benefit of the parties and the parties’ respective heirs, executors, personal representatives, successors, and assigns, refuting any contention that the widow intended to retain any rights in the husband’s estate. In re Estate of Sharpe, 258 N.C. App. 601, 814 S.E.2d 595, 2018 N.C. App. LEXIS 326 (2018).

Reconciliation After Separation Agreement. —

During a separation, the surviving spouse and the decedent prepared a separation agreement containing a provision wherein they waived the right to inheritance rights from each others’ estates, but the couple thereafter reconciled and lived together until the decedent’s death; thus, the surviving spouse had a right to claim an elective share under G.S. 30-3.1 because the waiver of inheritance rights was rescinded and canceled under G.S. 52-10.2 by the reconciliation of the decedent and the surviving spouse. In re Estate of Archibald, 183 N.C. App. 274, 644 S.E.2d 264, 2007 N.C. App. LEXIS 1046 (2007).

Testimony. —

Terms of a mediated settlement agreement and consent judgment impliedly waived petitioner’s right to an elective share of the decedent’s estate under G.S. 30-3.1(a) . The trial court was not required to hear petitioner’s testimony before making this determination. In re Estate of Cracker, 273 N.C. App. 534, 850 S.E.2d 506, 2020 N.C. App. LEXIS 696 (2020).

II.Decisions under Prior Law
A.In General

Editor’s Note. —

The cases below were decided under former G.S. 30-1 to 30-3 and corresponding prior provisions, relating to the right to dissent.

Constitutionality of Former Provisions. —

The provisions of, former G.S. 30-1 , G.S. 30-2, and G.S. 30-3, insofar as they gave a husband a right in certain cases to dissent from his deceased wife’s will, and to take a specified share of his deceased wife’s real and personal property, violated the former provisions of N.C. Const., Art. X, § 6 (see now N.C. Const., Art. X, § 4), since they diminished a married woman’s estate disposed of by her will, and restricted and abridged her constitutional power to dispose of her property by will as if she were unmarried. Dudley v. Staton, 257 N.C. 572 , 126 S.E.2d 590, 1962 N.C. LEXIS 387 (1962) (commented on in 41 N.C.L. Rev. 311 (1963).) .

Former G.S. 30-1 , G.S. 30-2, and G.S. 30-3, insofar as they gave a husband the right in certain instances to dissent from his deceased wife’s will and take a specified share of her estate, were unconstitutional under former N.C. Const., Art. X, § 6 (see now N.C. Const., Art. X, § 4), to the extent that they diminished pro tanto a devise of her separate estate in accordance with a will executed by her. But the adoption by the voters of the amendment to former N.C. Const., Art. X, § 6 (see now N.C. Const., Art. X, § 4), restored, subject to the qualifications set forth in Session Laws 1963, c. 1209, the right of the husband to dissent from the will of his wife. Fullam v. Brock, 271 N.C. 145 , 155 S.E.2d 737, 1967 N.C. LEXIS 1167 (1967); Fullam v. Brock, 271 N.C. 145 , 155 S.E.2d 737, 1967 N.C. LEXIS 1167 (1967).

Former G.S. 30-3(b), which provided that a second or successive spouse who dissented from the will of his deceased spouse should take only one half the amount provided by the Intestate Succession Act, G.S. 29-1 et seq., for the surviving spouse if the testator had surviving him lineal descendants by a former marriage but there were no surviving lineal descendants by the second or successive marriage, was not arbitrarily discriminatory and capricious so as to be violative of the due process provisions of the federal and State Constitutions. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

The provisions of G.S. 1-254 did not confer subject matter jurisdiction on the court to hear the plaintiffs’ challenge to the defendant’s right to dissent; because former G.S. 30-1(c) and G.S. 1-254 govern mutually exclusive subject matter, each must be construed separately; although both an action contesting a surviving spouse’s right of dissent and an action construing a will in part involve estate valuations (the dissent action involving valuation of the entire estate and the declaratory judgment action involving valuation of the testamentary estate), the actions are still fundamentally different in nature. Ripley v. Day, 139 N.C. App. 630, 534 S.E.2d 620, 2000 N.C. App. LEXIS 992 , sub. op., 141 N.C. App. 546, 539 S.E.2d 384, 2000 N.C. App. LEXIS 1414 (2000).

Former G.S. 30-1(c) and G.S. 1-254 govern mutually exclusive subject matter and cannot be construed in pari materia. Ripley v. Day, 141 N.C. App. 546, 539 S.E.2d 384, 2000 N.C. App. LEXIS 1414 (2000).

Former statute had no application in cases of intestacy. Vinson v. Chappell, 3 N.C. App. 348, 164 S.E.2d 631, 1968 N.C. App. LEXIS 860 (1968), aff'd, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

It was only when a spouse died testate that former G.S. 30-1 et seq. became applicable. Vinson v. Chappell, 3 N.C. App. 348, 164 S.E.2d 631, 1968 N.C. App. LEXIS 860 (1968), aff'd, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Purpose of Statute. —

The apparent purpose of former G.S. 30-1 to deny a surviving spouse a share of the testator’s “net estate” when he or she had been adequately provided for by property passing outside the probate estate. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Right Conferred by Statute. —

The right of a husband or wife to dissent from the will of his spouse was conferred by statute and could be under former G.S. 30-1 exercised at the time and in the manner fixed by statute. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Husband and Wife Have Same Rights. —

Session Laws 1963, c. 1209 was enacted to abrogate the effect of the decision in Dudley v. Staton, 257 N.C. 572 , 126 S.E.2d 590 (1962), and to make the rights of husbands and wives the same in each other’s separate property. Fullam v. Brock, 271 N.C. 145 , 155 S.E.2d 737, 1967 N.C. LEXIS 1167 (1967).

Assignment of Reason Not Required. —

The surving spouse in the exercise of the right to dissent under former G.S. 30-1 was not required to assign any reason therefor. In re Estate of Cox, 32 N.C. App. 765, 233 S.E.2d 926, 1977 N.C. App. LEXIS 2058 , cert. denied, 292 N.C. 729 , 235 S.E.2d 783, 1977 N.C. LEXIS 1179 (1977).

The right of a widow to dissent from the will pursuant to former G.S. 30-1 was given by law, and she could exercise such right within the time fixed by statute without assigning any reason therefor. Union Nat'l Bank v. Easterby, 236 N.C. 599 , 73 S.E.2d 541, 1952 N.C. LEXIS 612 (1952); In re Estate of Kirkman, 38 N.C. App. 515, 248 S.E.2d 438, 1978 N.C. App. LEXIS 2229 (1978).

Former G.S. 30-1 conferred no right of dower or year’s support; these rights existed independently. Overton v. Overton, 259 N.C. 31 , 129 S.E.2d 593, 1963 N.C. LEXIS 480 (1963).

Rights Analogous to Former Right of Dower. —

The rights devolving after the allocation by the commissioners of the spouse’s share after a dissent (claim of elective share) is analogous to the rights which devolved upon a widow in the allocation of her dower before its abolishment. Etheridge v. Etheridge, 41 N.C. App. 44, 255 S.E.2d 729, 1979 N.C. App. LEXIS 2380 (1979).

Limitation on Right. —

Right to dissert under former provisions was limited to those cases in which provisions under the will, when added to the value of property passing outside the will as a result of the testator’s death, (1) were less than the intestate share, or (2) were less than one half of the net estate if neither lineal descendant nor parent survived. North Carolina Nat'l Bank v. Stone, 263 N.C. 384 , 139 S.E.2d 573, 1965 N.C. LEXIS 1289 (1965).

Right Not an Obligation. —

The right to dissent was not an obligation to dissent. Moveover, it was a common principle of law that a surviving spouse had to elect between taking under a will and dissenting from the will, and the election of one precluded the other. Tarlton v. Stidham, 122 N.C. App. 77, 469 S.E.2d 38, 1996 N.C. App. LEXIS 199 (1996).

Right Not Contingent. —

Although under prior law the right to take property after dissenting from a will must be established, it was not a contingent right. Tighe v. Michal, 41 N.C. App. 15, 254 S.E.2d 538, 1979 N.C. App. LEXIS 2385 (1979).

Testator Presumed to Have Known of Surviving Spouse’s Right. —

In making a will a husband is presumed to have knowledge of and to have taken into consideration the statutory right of his widow under former G.S. 30-1 to dissent from the will. Keesler v. North Carolina Nat'l Bank, 256 N.C. 12 , 122 S.E.2d 807, 1961 N.C. LEXIS 700 (1961); Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Testator can prevent his will from being upset by giving his surviving spouse the minimum provision required by statute, which may be satisfied in whole or in part by a life estate or life income interest. In re Estate of Finch, 97 N.C. App. 489, 389 S.E.2d 126, 1990 N.C. App. LEXIS 161 (1990).

Election Required under Prior Statutes. —

Under prior statutes, surviving spouse had to elect between taking under a will and dissenting from the will. The spouse could not do both; the election of one precludes the other. Hill v. Smith, 51 N.C. App. 670, 277 S.E.2d 542, 1981 N.C. App. LEXIS 2286 (1981).

Dissenting Widow Could Not Assert Any Benefits under Will. —

Widow’s dissent from her husband’s will under former G.S. 30-1 et seq. was a rejection of it as far as her rights were concerned, and having elected to treat it as a nullity, she could not assert any benefits thereunder, even in regard to direction in the will for the payment of estate taxes. Wachovia Bank & Trust Co. v. Green, 236 N.C. 654 , 73 S.E.2d 879, 1953 N.C. LEXIS 545 (1953) (commented on in 31 N.C.L. Rev. 491 (1953)) .

The act of qualifying as administratrix c.t.a. Did not constitute an election to take under the will so as to bar the statutory right of dissent under prior statutes, when at the time of qualification as administratrix c.t.a., the widow was 69 years old, had not communicated with her deceased husband for 18 years, was not accomplished in business affairs on the administration of estates and did not have the assistance of legal counsel. Hurdle v. Sawyer, 46 N.C. App. 814, 266 S.E.2d 404, 1980 N.C. App. LEXIS 2916 (1980).

Effect of Dissent on Provisions of Will. —

A widow having dissented from her husband’s will under former G.S. 30-1 et seq. was entitled to exactly the same share in his estate she would have received if he had died intestate. So far as her property rights in her husband’s estate were concerned there was no will. In all other respects the will remained and the executors were controlled by its terms. Wachovia Bank & Trust Co. v. Green, 236 N.C. 654 , 73 S.E.2d 879, 1953 N.C. LEXIS 545 (1953) (commented on in 31 N.C.L. Rev. 491 (1953)) .

Dissent Held to Bar Other Actions. —

Plaintiff’s dissent to her husband’s will, under former G.S. 30-1 , which was subject only to an essentially ministerial act by the clerk of court in approving a valuation agreement, precluded her from maintaining an action for construction of the will or claiming property passing under the residuary clause of the will. Taylor v. Taylor, 301 N.C. 357 , 271 S.E.2d 506, 1980 N.C. LEXIS 1164 (1980).

Effect on Remainder. —

Widow’s dissent from will under former G.S. 30-1 et seq. was held to terminate her life estate thereunder and accelerate the vesting of remainder. Union Nat'l Bank v. Easterby, 236 N.C. 599 , 73 S.E.2d 541, 1952 N.C. LEXIS 612 (1952).

Dissent of surviving spouse, so far as remaindermen are concerned, is equivalent to her death. Keesler v. North Carolina Nat'l Bank, 256 N.C. 12 , 122 S.E.2d 807, 1961 N.C. LEXIS 700 (1961).

Separate Agreement with Remaindermen. —

The fact that widow’s unconditional dissent from will under former G.S. 30-3.1 and election to take her statutory rights was based upon separate agreement with the vested remaindermen that they pay her a specified sum, did not affect the validity of the dissent, the dissent being valid unless she was induced to dissent in ignorance of her rights to her prejudice. Union Nat'l Bank v. Easterby, 236 N.C. 599 , 73 S.E.2d 541, 1952 N.C. LEXIS 612 (1952).

Personal Representative Who Was Surviving Spouse Need Not Resign While Right Is Determined. —

The personal representative need not resign from that position during the time the right to dissent under former G.S. 30-1 was being determined. North Carolina Nat'l Bank v. Stone, 263 N.C. 384 , 139 S.E.2d 573, 1965 N.C. LEXIS 1289 (1965).

Failure to Resign Is Not Waiver of Right. —

The failure of the surviving spouse to resign as personal representative during the time the right to dissent under former G.S. 30-1 was determined could not constitute a waiver of the right. North Carolina Nat'l Bank v. Stone, 263 N.C. 384 , 139 S.E.2d 573, 1965 N.C. LEXIS 1289 (1965).

Right of Widow Who Offered Will and Was Appointed Executrix. —

Under prior statutes, widow who offered a will for probate and qualified as executrix thereunder, and entered upon the duties of her office, or knowingly took property thereunder, could not afterwards be allowed to resign and dissent from said will, unless it appeared that such widow was at the time mentally and physically disqualified from attending to the business in hand or having any intelligent concept of what she was about. Joyce v. Joyce, 260 N.C. 757 , 133 S.E.2d 675, 1963 N.C. LEXIS 803 (1963).

As to decisions under former law, see also Cheshire v. McCoy, 52 N.C. 376 , 1860 N.C. LEXIS 50 (1860); Jones v. Gerock, 59 N.C. 190 , 1861 N.C. LEXIS 4 (1861); Hinton v. Hinton, 61 N.C. 410 , 1868 N.C. LEXIS 25 (1868); Ramsour v. Ramsour, 63 N.C. 231 , 1869 N.C. LEXIS 39 (1869); Hinton v. Hinton, 68 N.C. 100 (1873); Arrington v. Dorten, 77 N.C. 367 , 1877 N.C. LEXIS 101 (1877); Yorkly v. Stinson, 97 N.C. 236 , 1 S.E. 452, 1887 N.C. LEXIS 142 (1887); Horton v. Lee, 99 N.C. 227 , 5 S.E. 404, 1888 N.C. LEXIS 278 (1888); Hollmon v. Hollmon, 125 N.C. 29 , 34 S.E. 99, 1899 N.C. LEXIS 162 (1899); Richardson v. Justice, 125 N.C. 409 , 34 S.E. 441, 1899 N.C. LEXIS 229 (1899); Trustees of Baptist Female Univ. v. Borden, 132 N.C. 476 , 44 S.E. 47, 1903 N.C. LEXIS 318 (1903); Perkins v. Brinkley, 133 N.C. 86 , 45 S.E. 465, 1903 N.C. LEXIS 19 (1903); Lee v. Giles, 161 N.C. 541 , 77 S.E. 852, 1913 N.C. LEXIS 277 (1913); Atlantic Trust & Banking Co. v. Stone, 176 N.C. 270 , 97 S.E. 8, 1918 N.C. LEXIS 234 (1918); In re Smith's Estate, 226 N.C. 169 , 37 S.E.2d 127, 1946 N.C. LEXIS 4 09 (1946).

B.Lineal Descendants

The term “lineal descendants” is defined at G.S. 29-2(4) as “all children of such person”; this would include even illegitimate children of a deceased female, under G.S. 29-19(a), and clearly includes adopted children, pursuant to G.S. 29-17 . In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

The phrase “lineal descendants” is generally applied not to distinguish between children of various marriages or out of wedlock, but to distinguish children from other collateral descendants, e.g., nieces and nephews. In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

Adopted Children as Lineal Descendants. —

Natural children of one spouse born during a previous marriage, if adopted by second spouse with the consent of their surviving natural parent, would be considered lineal descendants by the second marriage for the purposes of former G.S. 30-3(b), which determined a dissenting spouse’s share. In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

Applying G.S. 48-23(1), children adopted must be treated legally as having been born at the time of the order of adoption; accordingly, children in question were as a matter of law born of decedent’s second marriage, and were “lineal descendants by the second marriage” within the intended meaning of former G.S. 30-3(b). In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

The natural children of a testatrix, born of a previous marriage and duly adopted by her second husband, would be considered to be her lineal descendants by the second marriage for purposes of determining the second spouse’s distributive share upon his dissent from the testatrix’s will pursuant to former G.S. 30-3(b). In re Estate of Edwards, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

More Testamentary Freedom Allowed to Spouse with Lineal Descendants by First Marriage Only. —

The real effect of former G.S. 30-3 was to allow a spouse who left a child or other lineal descendant by a previous marriage but none by the spouse who survived him more testamentary freedom than he would have had otherwise. It was not for the Court of Appeals to “second guess” the General Assembly on the wisdom of this distinction. The court believed the statute was enacted in good faith and it created a classification based upon real distinctions which were not unreasonable. Vinson v. Chappell, 3 N.C. App. 348, 164 S.E.2d 631, 1968 N.C. App. LEXIS 860 (1968), aff'd, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Establishment of Right When Spouse and Lineal Descendant Survive. —

Under prior statutes where the testator was survived by his spouse and a lineal descendant, the right of the surviving spouse to dissent was established by the determination and comparison of two figures: (1) the aggregate value of property passing under the will and outside the will to the surviving spouse: and (2) the intestate share of the surviving spouse. Phillips v. Phillips, 34 N.C. App. 428, 238 S.E.2d 790, 1977 N.C. App. LEXIS 1713 (1977), rev'd, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

C.Second or Successive Spouse.

Intent of the legislature in enacting former G.S. 30-3(b) was to enable a person who had a child or lineal descendant by a former marriage to make greater provision for such child or lineal descendant. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

While the legislative purpose of former G.S. 30-3(b) was not entirely clear, it was apparently passed to protect a testator’s children by a former marriage against a “fortune-hunting” second or successive spouse. In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

Former G.S. 30-3(b) was enacted for the protection of a testator’s children by a former spouse, on the assumption that a second or successive spouse would not feel as compelled to provide for the stepchildren upon testator’s death as would the testator in his will. In re Estate of Edwards, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

When Former G.S. 30-3(b) was Applicable. —

Former G.S. 30-3(b) was applicable when the decedent was survived by a child or lineal descendant of a former marriage, even if the decedent’s will left nothing to such child or lineal descendant. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Former G.S. 30-3(b) applied to limit the share of a surviving spouse to one half the intestate share only when (1) a married person died testate survived by his spouse, (2) the surviving spouse, being entitled under former G.S. 30-1 to do so, dissented, (3) the surviving spouse was a “second or successive spouse,” (4) no lineal descendants by the second or successive marriage survived the testator, and (5) the testator was survived by lineal descendants by his former marriage. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Facts Not Considered as to Applicability of Former G.S. 30-3(b). —

Whether former G.S. 30-3(b) applied did not depend at all upon such considerations as: (1) the comparative durations of the first and second marriage; (2) whether the former marriage was terminated by death or by divorce; (3) the age(s) of the child or children of the former marriage at the time of the second or successive marriage; and (4) the age(s) of the child or children of the former marriage and their financial status at the time of the death of the decedent. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Wife’s failure to “join” in her husband’s petition for adoption of her two minor children by a previous marriage in no way affected her relationship with the children and was immaterial to a determination of her husband’s distributive share under former G.S. 30-3(b). In re Estate of Edwards, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

The right of a “second or successive spouse” to dissent under former G.S. 30-1 was determined by former G.S. 30-1 (a)(1) without reference to former G.S. 30-3(b). Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

D.Federal Estate Tax

Estimate of federal estate tax required by former G.S. 30-1(a) was not an estimate of the actual tax which would be paid on the estate, but rather, an estimate of the tax which would be paid if plaintiff received the share of the “net estate” specified by former G.S. 30-1(a)(1), including any marital deduction the estate would receive as a result of her taking that share. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

For purposes of determining whether a surviving spouse could dissent under former G.S. 30-1 , it was an estimation of the federal estate tax which had to be deducted in approximating the “net estate.” Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Interest and penalties on federal estate tax were not to be considered when computing the “net estate” for the purpose of determining whether a surviving spouse could dissent under former G.S. 30-1 . Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

When Dissenting Widow Takes Share Free of Federal Estate Tax. —

Under former G.S. 30-1 , et seq., the only instance where a surviving wife was allowed to take her distributive share free and clear of the federal estate tax would occur when her husband died testate, leaving no lineal descendants or parents surviving him, and she dissented from his will. Tolson v. Young, 260 N.C. 506 , 133 S.E.2d 135, 1963 N.C. LEXIS 738 (1963); Adams v. Adams, 261 N.C. 342 , 134 S.E.2d 633, 1964 N.C. LEXIS 462 (1964).

When Share Taken after Federal Estate Taxes. —

Under former G.S. 30-1 et seq., childless widow who dissented from the will of her husband who was survived also by one or more lineal descendants by a former marriage would take her statutory share of the estate computed after the deduction of the federal estate taxes. Tolson v. Young, 260 N.C. 506 , 133 S.E.2d 135, 1963 N.C. LEXIS 738 (1963).

B.Lineal Descendants

The term “lineal descendants” is defined at G.S. 29-2(4) as “all children of such person”; this would include even illegitimate children of a deceased female, under G.S. 29-19(a), and clearly includes adopted children, pursuant to G.S. 29-17 . In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

The phrase “lineal descendants” is generally applied not to distinguish between children of various marriages or out of wedlock, but to distinguish children from other collateral descendants, e.g., nieces and nephews. In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

Adopted Children as Lineal Descendants. —

Natural children of one spouse born during a previous marriage, if adopted by second spouse with the consent of their surviving natural parent, would be considered lineal descendants by the second marriage for the purposes of former G.S. 30-3(b), which determined a dissenting spouse’s share. In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

Applying G.S. 48-23(1), children adopted must be treated legally as having been born at the time of the order of adoption; accordingly, children in question were as a matter of law born of decedent’s second marriage, and were “lineal descendants by the second marriage” within the intended meaning of former G.S. 30-3(b). In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

The natural children of a testatrix, born of a previous marriage and duly adopted by her second husband, would be considered to be her lineal descendants by the second marriage for purposes of determining the second spouse’s distributive share upon his dissent from the testatrix’s will pursuant to former G.S. 30-3(b). In re Estate of Edwards, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

More Testamentary Freedom Allowed to Spouse with Lineal Descendants by First Marriage Only. —

The real effect of former G.S. 30-3 was to allow a spouse who left a child or other lineal descendant by a previous marriage but none by the spouse who survived him more testamentary freedom than he would have had otherwise. It was not for the Court of Appeals to “second guess” the General Assembly on the wisdom of this distinction. The court believed the statute was enacted in good faith and it created a classification based upon real distinctions which were not unreasonable. Vinson v. Chappell, 3 N.C. App. 348, 164 S.E.2d 631, 1968 N.C. App. LEXIS 860 (1968), aff'd, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Establishment of Right When Spouse and Lineal Descendant Survive. —

Under prior statutes where the testator was survived by his spouse and a lineal descendant, the right of the surviving spouse to dissent was established by the determination and comparison of two figures: (1) the aggregate value of property passing under the will and outside the will to the surviving spouse: and (2) the intestate share of the surviving spouse. Phillips v. Phillips, 34 N.C. App. 428, 238 S.E.2d 790, 1977 N.C. App. LEXIS 1713 (1977), rev'd, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

C.Second or Successive Spouse.

Intent of the legislature in enacting former G.S. 30-3(b) was to enable a person who had a child or lineal descendant by a former marriage to make greater provision for such child or lineal descendant. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

While the legislative purpose of former G.S. 30-3(b) was not entirely clear, it was apparently passed to protect a testator’s children by a former marriage against a “fortune-hunting” second or successive spouse. In re Estate of Edwards, 77 N.C. App. 302, 335 S.E.2d 39, 1985 N.C. App. LEXIS 4060 (1985), aff'd, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

Former G.S. 30-3(b) was enacted for the protection of a testator’s children by a former spouse, on the assumption that a second or successive spouse would not feel as compelled to provide for the stepchildren upon testator’s death as would the testator in his will. In re Estate of Edwards, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

When Former G.S. 30-3(b) was Applicable. —

Former G.S. 30-3(b) was applicable when the decedent was survived by a child or lineal descendant of a former marriage, even if the decedent’s will left nothing to such child or lineal descendant. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Former G.S. 30-3(b) applied to limit the share of a surviving spouse to one half the intestate share only when (1) a married person died testate survived by his spouse, (2) the surviving spouse, being entitled under former G.S. 30-1 to do so, dissented, (3) the surviving spouse was a “second or successive spouse,” (4) no lineal descendants by the second or successive marriage survived the testator, and (5) the testator was survived by lineal descendants by his former marriage. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Facts Not Considered as to Applicability of Former G.S. 30-3(b). —

Whether former G.S. 30-3(b) applied did not depend at all upon such considerations as: (1) the comparative durations of the first and second marriage; (2) whether the former marriage was terminated by death or by divorce; (3) the age(s) of the child or children of the former marriage at the time of the second or successive marriage; and (4) the age(s) of the child or children of the former marriage and their financial status at the time of the death of the decedent. Vinson v. Chappell, 275 N.C. 234 , 166 S.E.2d 686, 1969 N.C. LEXIS 378 (1969).

Wife’s failure to “join” in her husband’s petition for adoption of her two minor children by a previous marriage in no way affected her relationship with the children and was immaterial to a determination of her husband’s distributive share under former G.S. 30-3(b). In re Estate of Edwards, 316 N.C. 698 , 343 S.E.2d 913, 1986 N.C. LEXIS 2414 (1986).

The right of a “second or successive spouse” to dissent under former G.S. 30-1 was determined by former G.S. 30-1 (a)(1) without reference to former G.S. 30-3(b). Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

D.Federal Estate Tax

Estimate of federal estate tax required by former G.S. 30-1(a) was not an estimate of the actual tax which would be paid on the estate, but rather, an estimate of the tax which would be paid if plaintiff received the share of the “net estate” specified by former G.S. 30-1(a)(1), including any marital deduction the estate would receive as a result of her taking that share. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

For purposes of determining whether a surviving spouse could dissent under former G.S. 30-1 , it was an estimation of the federal estate tax which had to be deducted in approximating the “net estate.” Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Interest and penalties on federal estate tax were not to be considered when computing the “net estate” for the purpose of determining whether a surviving spouse could dissent under former G.S. 30-1 . Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

When Dissenting Widow Takes Share Free of Federal Estate Tax. —

Under former G.S. 30-1 , et seq., the only instance where a surviving wife was allowed to take her distributive share free and clear of the federal estate tax would occur when her husband died testate, leaving no lineal descendants or parents surviving him, and she dissented from his will. Tolson v. Young, 260 N.C. 506 , 133 S.E.2d 135, 1963 N.C. LEXIS 738 (1963); Adams v. Adams, 261 N.C. 342 , 134 S.E.2d 633, 1964 N.C. LEXIS 462 (1964).

When Share Taken after Federal Estate Taxes. —

Under former G.S. 30-1 et seq., childless widow who dissented from the will of her husband who was survived also by one or more lineal descendants by a former marriage would take her statutory share of the estate computed after the deduction of the federal estate taxes. Tolson v. Young, 260 N.C. 506 , 133 S.E.2d 135, 1963 N.C. LEXIS 738 (1963).

§ 30-3.2. Definitions.

The following definitions apply in this Article:

  1. Claims. — Includes liabilities of the decedent, whether arising in contract, in tort, or otherwise, and liabilities of the decedent’s estate that arise at or after the death of the decedent, including funeral and administrative expenses, except for:
    1. A claim for equitable distribution of property pursuant to G.S. 50-20 awarded subsequent to the death of the decedent.
    2. Death taxes, except for those death taxes attributable to Property Passing to the Surviving Spouse. “Death taxes attributable to Property Passing to the Surviving Spouse” equals the amount of decedent’s death taxes as finally determined, less the amount such death taxes would have been if all Property Passing to the Surviving Spouse had qualified for the federal estate tax marital deduction pursuant to section 2056 of the Code or had qualified for a similar provision under the laws of another applicable taxing jurisdiction.
    3. A claim founded on a promise or agreement of the decedent, to the extent such claim is not arm’s length or is not supported by full or adequate consideration in money or money’s worth.
    4. Expenses apportioned by the clerk of court under G.S. 30-3.4(h). (1a) Code. — The Internal Revenue Code in effect at the time of the decedent’s death.
  2. Death taxes. — Any estate, inheritance, succession, and similar taxes imposed by any taxing authority, reduced by any applicable credits against those taxes. (2a) General power of appointment. — Any power of appointment, including a power to designate the beneficiary of a beneficiary designation, exercisable by the decedent, regardless of the decedent’s capacity to exercise such power, in favor of the decedent, the decedent’s estate, the decedent’s creditors, or the creditors of the decedent’s estate, except for (i) powers limited by an “ascertainable standard” as defined in G.S. 36C-1-103 and (ii) powers which are not exercisable by the decedent except in conjunction with a person who created the power or has a substantial interest in the property subject to the power and whose interest is adverse to the exercise of the power in favor of the decedent, the decedent’s estate, the decedent’s creditors, or the creditors of the decedent’s estate. In no event shall a power held by the decedent as attorney-in-fact under a power of attorney be considered a general power of appointment.

    (2b) Lineal descendant. — Defined in G.S. 29-2 .

    (2c) Net Property Passing to Surviving Spouse. — The Property Passing to Surviving Spouse reduced by (i) death taxes attributable to property passing to surviving spouse, and (ii) claims payable out of, charged against or otherwise properly allocated to Property Passing to Surviving Spouse.

  3. Nonadverse trustee. — Any of the following:
    1. Any person who does not possess a substantial beneficial interest in the trust that would be adversely affected by the exercise or nonexercise of the power that the individual trustee possesses respecting the trust;
    2. Any person subject to a power of removal by the surviving spouse with or without cause; or
    3. Any company authorized to engage in trust business under the laws of this State, or that otherwise meets the requirements to engage in trust business under the laws of this State. (3a) Nonspousal assets. — All property included in total assets other than the property included in Property Passing to Surviving Spouse.

      (3b) Presently exercisable general power of appointment. — A general power of appointment which is exercisable at the time in question. A testamentary general power of appointment is not presently exercisable.

      (3c) Property Passing to Surviving Spouse. — The sum of the values, as valued pursuant to G.S. 30-3.3 A, of the following:

      a. Property (i) devised, outright or in trust, by the decedent to the surviving spouse or (ii) that passes, outright or in trust, to the surviving spouse by intestacy, beneficiary designation, the exercise or failure to exercise the decedent’s testamentary general power of appointment or the decedent’s testamentary limited power of appointment, operation of law, or otherwise by reason of the decedent’s death, excluding any benefits under the federal social security system.

      b. Any year’s allowance awarded to the surviving spouse.

      c. Property renounced by the surviving spouse.

    4. The surviving spouse’s interest in any life insurance proceeds on the life of the decedent.
    5. Any interest in property, outright or in trust, transferred from the decedent to the surviving spouse during the lifetime of the decedent for which the surviving spouse signs a statement acknowledging such a gift. For purposes of this sub-subdivision, any gift to the surviving spouse by the decedent of the decedent’s interest in any property held by the decedent and the surviving spouse as tenants by the entirety or as joint tenants with right of survivorship shall be deemed to be a gift of one-half of the entire interest in property so held by the decedent and the surviving spouse.
    6. Property awarded to the surviving spouse, subsequent to the death of the decedent, pursuant to an equitable distribution claim under G.S. 50-20 .
    7. Property held in a spousal trust described in G.S. 30-3.3 A(e)(1).

      If property falls under more than one sub-subdivision of this subdivision, then the property shall be included only once, but under the sub-subdivision yielding the greatest value of the property.

      (3d) Responsible person. — A person or entity other than the surviving spouse that received, held, or controlled property constituting nonspousal assets on the date used to determine the value of the property. The personal representative is the responsible person for nonspousal assets that pass under the decedent’s will or by intestate succession.

      (3e) Responsible person’s nonspousal assets. — The nonspousal assets received, held, or controlled by a responsible person.

      (3f) Total assets. — The sum of the values, as determined pursuant to G.S. 30-3.3A, of the following:

      a. The decedent’s property that would pass by intestate succession if the decedent died without a will, other than wrongful death proceeds;

      b. Property over which the decedent, immediately before death, held a presently exercisable general power of appointment, except for (i) property held jointly with right of survivorship, which is includable in total assets only to the extent provided in sub-subdivision c. of this subdivision and (ii) life insurance, which is includable in Total Assets only to the extent provided in sub-subdivision d. of this subdivision. Includes, without limitation:

      1. Property held in a trust that the decedent could revoke.
      2. Property held in a trust to the extent that the decedent had an unrestricted power to withdraw the property.
      3. Property held in a depository account owned by the decedent in a financial institution payable or transferable at decedent’s death to a beneficiary designated by the decedent.
      4. Securities owned by the decedent in an account or in certificated form that are payable or transferable at decedent’s death to a beneficiary designated by the decedent.

        c. Property held as tenants by the entirety or jointly with right of survivorship as follows:

        1. One-half of any property held by the decedent and the surviving spouse as tenants by the entirety.

        2.

        Property held by the decedent and one or more other persons as joint tenants with right of survivorship is included to the extent of the decedent’s pro rata share of property attributable to the decedent’s contribution.

        The decedent and all other joint tenants are presumed to have contributed in-kind in accordance with their respective shares for the jointly owned property unless otherwise proven by clear and convincing evidence.

        d. Benefits payable by reason of the decedent’s death under any policy, plan, contract, or other arrangement, either owned by the decedent or over which the decedent had a general power of appointment or had the power to designate the surviving spouse as beneficiary, including, without limitation:

        1. Insurance on the life of the decedent.

        2. Accidental death benefits.

        3. Annuities.

        4. Employee benefits or similar arrangements.

      5. Individual retirement accounts.
      6. Pension or profit sharing plans.
      7. Deferred compensation.
      8. Any private or governmental retirement plan.

        e. Property irrevocably transferred by the decedent to the extent the decedent retained the possession or enjoyment of, or the right to income from, the property for life or for any period not ascertainable without reference to the decedent’s death or for any period that does not in fact end before the decedent’s death, except:

        1. Property transferred for full and adequate consideration.

        2. Transfers to that the surviving spouse consented in writing by signing a deed, an income or gift tax return that reports the gift, or other writing.

        3. Transfers that became irrevocable before the decedent’s marriage to the surviving spouse.

        The property included in total assets is that fraction of the transferred property to which the decedent retained the right.

        f. Property transferred by the decedent to the extent the decedent created a power over the property or the income from the property, which, immediately prior to death, could be exercised by the decedent in conjunction with any other person, or which could be exercised by a person who does not have a substantial interest that would be adversely affected by the exercise or nonexercise of the power, for the benefit of the decedent, the decedent’s estate, the decedent’s creditors, or the creditors of the decedent’s estate, except:

        1. Property transferred for full and adequate consideration.

        2. Transfers to which the surviving spouse consented in writing by signing a deed, an income or gift tax return that reports the gift, or other writing.

        3. Transfers which became irrevocable before the decedent’s marriage to the surviving spouse.

        The property included in total assets with respect to a power over property is that fraction of the property to which the power related.

        g. Property transferred by the decedent to persons other than the surviving spouse if such transfer was made both during the one-year period immediately preceding the decedent’s death and during the decedent’s marriage to the surviving spouse, except:

        1. Property transferred for full and adequate consideration.

        2. Transfers to which the surviving spouse consented in writing by signing a deed, an income or gift tax return that reports such gift, or other writing.

        3. That part of any property transferred to any one transferee that qualified for exclusion from gift tax under section 2503 of the Code.

        For purposes of this sub-subdivision, the termination of a right or interest in, or power over, property that would have been included in the total assets under sub-subdivisions b., e., or f. of this subdivision if the right, interest, or power had not terminated until the decedent’s death shall be deemed to be a transfer of such property. Termination occurs when, with respect to a right or interest in property, the decedent transfers or relinquishes the right or interest; with respect to a power over property, the power terminates by exercise or release, but not by lapse or default.

        If property falls under more than one sub-subdivision of this subdivision, then the property shall be included only once, but under the sub-subdivision yielding the greatest value of the property.

  4. Total Net Assets. — The total assets reduced by year’s allowances to persons other than the surviving spouse and claims.

History. 2000-140, s. 92; 2000-178, s. 2; 2001-364, s. 4; 2001-487, s. 16; 2003-296, s. 2; 2009-368, s. 1; 2020-60, s. 1.

Editor’s Note.

Session Laws 2020-60, s. 4, made the amendment of subdivision (3f) by Session Laws 2020-60, s. 1, effective June 30, 2020, and applicable to estates of decedents dying on or after that date and applicable to estate proceedings to determine the elective share which are not final on that date because the proceeding is subject to further judicial review.

Effect of Amendments.

Session Laws 2009-368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009, rewrote the section.

Session Laws 2020-60, s. 1, rewrote sub-subdivision (3f)c. For effective date and applicability, see editor’s note.

Legal Periodicals.

For recent development, “Death and the Partnership Principle: Interpreting Recent Abatement Amendments to North Carolina’s Equitable Distribution Act,” see 80 N.C.L. Rev. 1089 (2002).

For article, “The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina,” see 87 N.C.L. Rev. 1869 (2009).

CASE NOTES

Analysis

I.General Consideration

Trust Not Part of Total Net Assets. —

Superior court did not err in denying a widow’s claim for an elective share because the assets in a decedent’s trust were not part of his total net assets; the trust assets were part of the decedent’s gross estate, and no value was left in the trust for purposes of calculating the decedent’s total net assets because the taxable estate was zero since the assets of the trust were all transferred to a corporation organized for a charitable purpose. Pope v. Rollins, 192 N.C. App. 321, 666 S.E.2d 140, 2008 N.C. App. LEXIS 1626 (2008).

Superior court did not err in denying a widow’s claim for an elective share because the assets in a decedent’s trust were not part of his total net assets; when the Elective Share Act, G.S. 30-3.2(4)(e), refers to “the taxable estate,” it means the decedent’s gross estate less any deductions, and because G.S. 30-3.2(4)(e), encompasses property included in the taxable estate of the decedent “pursuant to” the Internal Revenue Code, the General Assembly was referring to “the taxable estate” as defined by the Internal Revenue Code. Pope v. Rollins, 192 N.C. App. 321, 666 S.E.2d 140, 2008 N.C. App. LEXIS 1626 (2008).

Superior court did not err in denying a widow’s claim for an elective share because the assets in a decedent’s trust were not part of his total net assets; the decedent did not have legal title within the meaning of the Elective Share Act, G.S. 30-3.2(4)(a) because legal title to the decedent’s trust assets was held collectively by the trustees. Pope v. Rollins, 192 N.C. App. 321, 666 S.E.2d 140, 2008 N.C. App. LEXIS 1626 (2008).

II.Decisions under Prior Law

Editor’s Note. —

The cases below were decided under former G.S. 30-1 to 30-3 and corresponding prior provisions, relating to the right to dissent.

Chapter 29 Governs Intestate Share. —

The determination of a surviving spouse’s intestate share is governed in the first instance by the “Intestate Succession Act,” Chapter 29, G.S. 29-1 et seq. Phillips v. Phillips, 34 N.C. App. 428, 238 S.E.2d 790, 1977 N.C. App. LEXIS 1713 (1977), rev'd, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

“Intestate share,” as used in former G.S. 30-1 , means the amount of real and personal property that the surviving spouse would receive under the provisions of Chapter 29, G.S. 29-1 et seq., known as the Intestate Succession Act, if her husband had died intestate. In re Estate of Connor, 5 N.C. App. 228, 168 S.E.2d 245, 1969 N.C. App. LEXIS 1321 (1969); Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

The term “intestate share,” as used in former G.S. 30-1(a)(1), was clear and unambiguous. The fact that the legislature provided one criterion for determining whether the right to dissent existed and another for determining the consequences of the dissent created no ambiguity. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Term Would Not Be Defined with References to Consequences of Dissent. —

The 1975 amendment which added subdivision (a)(3) of former G.S. 30-1 , cases where the surviving spouse is a second or successive spouse and the testator has surviving him lineal descendants by a former marriage and there are no lineal descendants surviving him by the second or successive marriage, did not manifest that the General Assembly’s intent that the term “intestate share” in subdivision (a)(1) of the section be defined with reference to the consequences of the dissent. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Year’s Allowance Not Part of Intestate Share. —

The year’s allowance for the surviving spouse under the provisions of G.S. 30-15 is not a part of the “intestate share” passing to a surviving spouse under the provisions of Chapter 29, G.S. 29-1 et seq., known as the Intestate Succession Act. In re Estate of Connor, 5 N.C. App. 228, 168 S.E.2d 245, 1969 N.C. App. LEXIS 1321 (1969).

Nor Is Entirety Property, Insurance, or Joint Accounts with Survivorship. —

“Intestate share” does not include any property received by the surviving spouse as a tenant by entirety, or from insurance contracts, or from joint accounts with right of survivorship. In re Estate of Connor, 5 N.C. App. 228, 168 S.E.2d 245, 1969 N.C. App. LEXIS 1321 (1969).

§ 30-3.3. [Repealed]

Repealed by Session Laws 2009-368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009.

Editor’s Note.

The former section, property passing to surviving spouse, was enacted by Session Laws 2000-178, s. 2, and amended by Session Laws 2001-364, s. 5 and 2003-296, s. 3.

§ 30-3.3A. Valuation of property.

  1. Basic Principles. —  Unless otherwise expressly stated to the contrary in this section, the value of property shall be that property’s fair market value, taking into consideration any applicable discounts. The value shall be determined as of the date of death, except for (i) property transferred to persons other than the surviving spouse described in G.S. 30-3.2(3f) g. and (ii) property transferred to the surviving spouse described in G.S. 30-3.2(3c) e. that is not held in trust, that is not life insurance, and that is not held as tenants by the entirety or some other form of ownership that passes to the surviving spouse by reason of survivorship. The value of gift property described in clauses (i) and (ii) shall be determined as the value on the date of transfer; but if the donee proves to the satisfaction of the clerk that the value on the date of disposal of the asset prior to the decedent’s death is less than on the original date of transfer or that the value on the date of death is less than on the original date of transfer, then the lesser value shall be used.
  2. Certain Joint Property. —  In valuing a partial interest in jointly owned property with right of survivorship, there shall be no discount taken to reflect the decedent’s partial interest including, but not limited to, discounts for lack of control, ownership of a fractional interest, or lack of marketability.
  3. Certain Powers of Appointment. —  In valuing property over which the decedent held a presently exercisable general power of appointment, the value includes only the property subject to the power that passes at the decedent’s death, whether by exercise, release, lapse, default, or otherwise.
  4. Certain Transfers With Retained Interests. —  In valuing property transferred by the decedent with a retained right of possession or enjoyment or the right to income described in G.S. 30-3.2(3f) e., only the fraction of the property to which the decedent retained a right shall be included. In valuing property in which the decedent created a power as described in G.S. 30-3.2(3f) f., the value includes, with respect to a power, the value of the property subject to the power, and the amount included in the valuation with respect to a power over the income is the value of the property that produces or produced the income; provided, however, if the power is a power over both income and property and the foregoing produces different amounts, the amount included in the valuation is the greater amount.
  5. Partial or Contingent Interest Property. —  The valuation of partial and contingent property interests, outright or in trust, which are limited to commence or terminate upon the death of one or more persons, upon the expiration of a period of time, or upon the occurrence of one or more contingencies, shall be determined by computations based upon the mortality and annuity tables set forth in G.S. 8-46 and G.S. 8-47 , and by using a presumed rate of return of six percent (6%) of the value of the underlying property in which those interests are limited, unless upon good cause shown by one of the parties, the clerk determines that the use of such tables or rate of return is not appropriate, then the value of such interests shall be determined under subsection (f) of this section. However, in valuing partial and contingent interests passing to the surviving spouse, the following special rules apply:
    1. The value of the beneficial interest of a spouse shall be the entire fair market value of any property held in trust if the decedent was the settlor of the trust, if the trust is held for the exclusive benefit of the surviving spouse during the surviving spouse’s lifetime, and if the terms of the trust meet the following requirements:
      1. During the lifetime of the surviving spouse, the trust is controlled by one or more nonadverse trustees.
      2. The trustee shall distribute to or for the benefit of the surviving spouse either (i) the entire net income of the trust at least annually or (ii) the income of the trust in such amounts and at such times as the trustee, in its discretion, determines necessary for the health, maintenance, and support of the surviving spouse.
      3. The trustee shall distribute to or for the benefit of the surviving spouse out of the principal of the trust such amounts and at such times as the trustee, in its discretion, determines necessary for the health, maintenance, and support of the surviving spouse.
      4. In exercising discretion, the trustee may be authorized or required to take into consideration all other income assets and other means of support available to the surviving spouse.
    2. To the extent that the partial or contingent interest is dependent upon the occurrence of any contingency that is not subject to the control of the surviving spouse and that is not subject to valuation by reference to the mortality and annuity tables set forth in G.S. 8-46 and G.S. 8-47 , the contingency will be conclusively presumed to result in the lowest possible value passing to the surviving spouse. However, a life estate or income interest that will terminate upon the surviving spouse’s death or remarriage will be valued without regard to the possibility of termination upon remarriage.
    3. Repealed by Session Laws 2015-205, s. 4.1, effective August 11, 2015.
  6. Method for Determining Value. —  Unless otherwise stated in this Article, the value of property shall be determined as follows:
    1. The value of property passing by intestacy described in G.S. 30-3.2(3f) a. and Property Passing to Surviving Spouse, other than property held in a trust, shall be established by the good-faith agreement of the surviving spouse and the personal representative, unless either (i) the surviving spouse is the personal representative or (ii) the clerk determines that the personal representative may not be able to represent the estate adversely to the surviving spouse, in which cases the value of such property shall be determined pursuant to subdivision (4) of this subsection.
    2. The value of property constituting an interest in a trust shall be established by good-faith agreement of the surviving spouse, the personal representative, and the trustee, unless either (i) the surviving spouse is both the personal representative and the trustee or (ii) the clerk determines that the trustee or the personal representative may not be able to represent the trust or the estate, respectively, adversely to the surviving spouse, in which cases the value of such property shall be determined pursuant to subdivision (4) of this subsection.
    3. The value of all other property shall be established by the good-faith agreement of the surviving spouse, the personal representative, and the responsible person that received, held, or controlled such property on the date used to determine the value of such property for purposes of determining total assets, unless the clerk determines that valuation under subdivision (4) of this subsection is more appropriate.
    4. If the value of any property is not established by agreement as provided above, the parties may present evidence regarding value, which may include expert testimony, and the clerk may appoint one or more qualified and disinterested persons to help determine the value of such property. After hearing, the clerk shall make a finding of fact of the value of each asset.

History. 2009-368, s. 1; 2015-205, s. 4.1.

Editor’s Note.

Session Laws 2009-368, s. 12, made this section effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009.

CASE NOTES

Requirements. —

Trial court erred in granting summary judgment for the beneficiaries because the Marital Trust met all statutory requirements because the Trust named nonadverse trustees presently and in perpetuity because of the Trustee’s rights to appoint another nonadverse trustee, N.C. Gen. Stat. § 30-3.3A(e)(1)(c) provided for permissive or discretionary distributions and the terms of the Trust permitted permissive distributions, and the Trust met the requirements to be a 100% fully countable trust against a surviving spouse’s elective share. Phillips v. MacRae, 280 N.C. App. 184, 867 S.E.2d 344, 2021- NCCOA-588, 2021 N.C. App. LEXIS 607 (2021).

§ 30-3.4. Procedure for determining the elective share.

  1. Exercisable Only During Lifetime. —  The right of the surviving spouse to file a claim for an elective share must be exercised during the lifetime of the surviving spouse, by the surviving spouse, by the surviving spouse’s agent if the surviving spouse’s power of attorney expressly authorizes the agent to do so or to generally engage in estate, trusts, and other beneficial interests, or, with approval of court, by the guardian of the surviving spouse’s estate or general guardian. If a surviving spouse dies before the claim for an elective share has been settled, the surviving spouse’s personal representative shall succeed to the surviving spouse’s rights to an elective share.
  2. Time Limitations. —  A claim for an elective share must be made within six months after the issuance of letters testamentary or letters of administration in connection with the will or intestate proceeding with respect to which the surviving spouse claims the elective share by (i) filing a petition with the clerk of superior court of the county in which the primary administration of the decedent’s estate lies, and (ii) mailing or delivering a copy of that petition to the personal representative of the decedent’s estate. A surviving spouse’s incapacity shall not toll the six-month period of limitations.
  3. Repealed by Session Laws 2011, c. 344, s. 6, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.
  4. Repealed by Session Laws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009. (d1) Mediation. — The clerk may order mediation as described in G.S. 7A-38.3 B of any disputes in connection with an elective share proceeding.
  5. Repealed by Session Laws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009. (e1) Procedure. — An elective share proceeding shall be an estate proceeding and shall be conducted in accordance with the procedures of Article 2 of Chapter 28A of the General Statutes. The petition shall be filed by the clerk upon payment of the costs assessed in G.S. 7A-307 .

    (e2) Information About Total Net Assets. — In order to assist the clerk in determining whether a surviving spouse is entitled to an elective share, and, if so, the amount thereof, the following provisions apply:

    1. Submission within two months. —  In every case in which a petition to determine an elective share has been filed, within two months of the filing of the petition, the personal representative shall submit sufficient information about the total assets for the clerk to determine the elective share. To fulfill its obligation to provide information, the personal representative may prepare and submit to the clerk a proposed Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, for the estate, regardless of whether that form is required to be filed with the Internal Revenue Service. The clerk may extend the time for submission of the proposed Form 706 or other information as the clerk sees fit.
    2. Examination regarding assets. —  If the personal representative, the surviving spouse, or a responsible person has reasonable grounds to believe that any person has a claim or has in its possession assets included in Total Net Assets, then the personal representative, surviving spouse, or responsible person may use the procedures set out in G.S. 28A-15-12 to cause the clerk to examine the person believed to have a claim or to possess assets included in Total Net Assets.
  6. Findings and Conclusions. —  After notice and hearing, the clerk shall determine whether or not the surviving spouse is entitled to an elective share, and if so, the clerk shall then determine the elective share and shall order the personal representative to transfer that amount to the surviving spouse. The clerk’s order shall recite specific findings of fact and conclusions of law in arriving at the decedent’s Total Net Assets, Property Passing to Surviving Spouse, and the elective share.
  7. Repealed by Session Laws 2009, c. 368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009.
  8. Expenses. —  The expenses (including attorneys’ fees) reasonably incurred by the personal representative, other responsible persons, and the surviving spouse in connection with elective share proceedings shall be equitably apportioned by the clerk of court in the clerk’s discretion among the personal representative, other responsible persons, and the surviving spouse.

History. 2000-178, s. 2; 2003-296, s. 4; 2009-368, s. 1; 2011-344, s. 6; 2017-153, s. 2.1; 2020-60, s. 2.

Editor’s Note.

Session Laws 2020-60, s. 4, made the last sentence of subsection (e1) of this section, as added by Session Laws 2020-60, s. 2, effective December 1, 2020, and applicable to estates of decedents dying on or after that date.

Effect of Amendments.

Session Laws 2009-368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009, in subsection (a), in the first sentence, substituted “by the surviving spouse’s attorney-in-fact if the surviving spouse’s power of attorney expressly authorizes the attorney-in-fact to do so or to generally engage in estate transactions, or, with approval of court, by the guardian of the surviving spouse’s estate or general guardian” for “the surviving spouse’s agent under a power of attorney, or the guardian of the surviving spouse’s estate”; deleted subsection (d), related to preparation of tax forms; deleted subsection (e), related to valuation; added subsections (d1) through (e2); deleted subsection (g), related to appeals; and added subsection (h).

Session Laws 2011-344, s. 6, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, deleted subsection (c), which pertained to “Time for Hearing”; and rewrote subsection (e1), which formerly read: “Procedure. — An elective share proceeding shall be an estate matter and may be appealed pursuant to G.S. 1-301.3 .”

Session Laws 2017-153, s. 2.1, effective January 1, 2018, in subsection (a) substituted “agent” for “attorney-in-fact” twice, and substituted “estate, trusts, and other beneficial interests” for “estate transactions.”

Session Laws 2020-60, s. 2, added the last sentence of subsection (e1). For effective date and applicability, see editor’s note.

CASE NOTES

Analysis

I.Decisions under Current Law

Summary Judgment Proper. —

Widow’s claim that the clerk of the superior court did not comply with the procedural requirements of the Elective Share Act, G.S. 30-3.4 , when he resolved the widow’s action seeking an elective share on the parties’ cross-motions for summary judgment was not properly before the court of appeals because the record did not contain any indication that the widow ever objected to the clerk’s resolving the case on summary judgment prior to appealing. Pope v. Rollins, 192 N.C. App. 321, 666 S.E.2d 140, 2008 N.C. App. LEXIS 1626 (2008).

II.Decisions under Prior Law
A.In General

Editor’s Note. —

The cases below were decided under former G.S. 30-1 to 30-3 and corresponding prior provisions, relating to the right to dissent.

Legislative Policy. —

Former G.S. 30-2(b), relating to how and by whom dissent could be given, was an expression of legislative policy which the Court of Appeals would not vitiate. In re Estate of Burleson, 24 N.C. App. 136, 210 S.E.2d 114, 1974 N.C. App. LEXIS 1954 (1974).

The legislature has created a two-step process to be used when a surviving spouse attempts to dissent from a deceased spouse’s will (claim an elective share): the first step is to determine if the surviving spouse has the right to dissent (to claim an elective share), and the second step is to determine the consequences. In re Estate of Francis, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990); Funk v. Masten, 121 N.C. App. 364, 465 S.E.2d 322, 1996 N.C. App. LEXIS 1 (1996).

Widow Required to Comply with Statute. —

Although a will gave a widow nothing, she was nevertheless required to comply with former section. First-Citizens Bank & Trust Co. v. Willis, 257 N.C. 59 , 125 S.E.2d 359, 1962 N.C. LEXIS 558 (1962).

Dissent signed by a subscribing witness did not comply with former G.S. 30-2(b). In re Estate of Burleson, 24 N.C. App. 136, 210 S.E.2d 114, 1974 N.C. App. LEXIS 1954 (1974).

To hold that the signature by a subscribing witness satisfied the acknowledgment required by former G.S. 30-2(b) would constitute judicial repeal of the 1959 amendment of that section, which provided for acknowledgment of dissents. In re Estate of Burleson, 24 N.C. App. 136, 210 S.E.2d 114, 1974 N.C. App. LEXIS 1954 (1974).

The guardian of an incompetent widower was authorized to file a dissent by him from his wife’s will under former G.S. 30-2. Fullam v. Brock, 271 N.C. 145 , 155 S.E.2d 737, 1967 N.C. LEXIS 1167 (1967).

Filing Creates Vested Right. —

The timely and correct filing of a proper dissent under former G.S. 30-1 et seq. constituted an exercise of the right to dissent and created a vested property right in the dissenting spouse. Tighe v. Michal, 41 N.C. App. 15, 254 S.E.2d 538, 1979 N.C. App. LEXIS 2385 (1979).

The dissenting spouse, upon filing dissent to the will under former G.S. 30-1 et seq., became vested, eo instanti, as of the date of the testator’s death, with title to the intestate share of the testator’s realty which was allowed by the statutes providing therefor. Etheridge v. Etheridge, 41 N.C. App. 44, 255 S.E.2d 729, 1979 N.C. App. LEXIS 2380 (1979).

Prompt Determination of Right. —

The legislature intended for the right to dissent under former G.S. 30-1 et seq. to be determined as quickly as possible after the dissent was filed. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Sufficiency of Marital Trust. —

Where under the terms of a trust established for his wife by the testator, the trustee was required to fund the trust with assets which would give wife a life income the value of which (when added to the value of other assets passing to wife under and outside the will) would be equal to her intestate share, and there were no allegations or evidence that the assets of the estate were insufficient to meet this requirement, the marital trust established for wife was not insufficient, as a matter of law, to defeat her right of dissent under former law. In re Estate of Finch, 97 N.C. App. 489, 389 S.E.2d 126, 1990 N.C. App. LEXIS 161 (1990).

Surviving Spouse Held to Have No Right to Dissent. —

Under prior statutes, where surviving spouse under will received all of his deceased wife’s personal property and, outside the will, received real property owned by the entireties, which was all the real property, he had no right to dissent, because he received everything that he would have received had his wife died without a will. In re Estate of Francis, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990).

Notice to Executor of Intentions of Dissenting Spouse. —

The giving of notice of dissent to the clerk of superior court under former G.S. 30-2(a) was sufficient to alert the executor with respect to the intentions of the dissenting spouse and afford him ample opportunity to prepare for a hearing on the question of the spouse’s statutory right to dissent under former G.S. 30-1 . In re Estate of Kirkman, 38 N.C. App. 515, 248 S.E.2d 438, 1978 N.C. App. LEXIS 2229 (1978).

Duty of Clerk to Record Filing. —

While former G.S. 30-2 merely required filing of dissent, it was the duty of the clerk to record the dissent when filed. Philbrick v. Young, 255 N.C. 737 , 122 S.E.2d 725, 1961 N.C. LEXIS 687 (1961).

Effect of Recording. —

Recording creates the presumption that the instrument was the act of the widow done in the time and manner required by law. Philbrick v. Young, 255 N.C. 737 , 122 S.E.2d 725, 1961 N.C. LEXIS 687 (1961).

B.Time Limitations

Former G.S. 30-2 was a statute of limitation, not an enabling statute. The period provided a widow to dissent from her husband’s will was not a condition precedent to that right, but merely limited the time in which she could resort to the courts to enforce it. Whitted v. Wade, 247 N.C. 81 , 100 S.E.2d 263, 1957 N.C. LEXIS 549 (1957); Taylor v. Taylor, 301 N.C. 357 , 271 S.E.2d 506, 1980 N.C. LEXIS 1164 (1980).

Former G.S. 30-2 was a statute of limitations. It extinguished no right, but limited the time in which a widow could enforce the right the law gave her to participate in her husband’s estate. First-Citizens Bank & Trust Co. v. Willis, 257 N.C. 59 , 125 S.E.2d 359, 1962 N.C. LEXIS 558 (1962).

Filing Procedure Not Determinative of Right. —

The filing procedure prescribed by former G.S. 30-3.4(a) was merely a limitation on the time within which a surviving spouse had to note her dissent of record. It was not conditioned upon or determinative of the right to dissent, which might not be established until some later date. Phillips v. Phillips, 34 N.C. App. 428, 238 S.E.2d 790, 1977 N.C. App. LEXIS 1713 (1977), rev'd, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Effect of Failure to File Within Time Specified. —

Failure to dissent under former G.S. 30-2 within the time specified did not extinguish the right, it simply barred the action therefor. Overton v. Overton, 259 N.C. 31 , 129 S.E.2d 593, 1963 N.C. LEXIS 480 (1963).

Time as to When Right Would Arise. —

Although a surviving spouse’s right to dissent under prior statutes could not be established until a mathematical computation of the value of the deceased spouse’s estate was made, the right to dissent generally arose as of the date of the death of the deceased spouse or it never arose. Tighe v. Michal, 41 N.C. App. 15, 254 S.E.2d 538, 1979 N.C. App. LEXIS 2385 (1979).

The right time, manner and effect of filing and recording a dissent to a will under former G.S. 30-1 were all matters within the probate jurisdiction of the clerk of superior court. In re Estate of Outen, 77 N.C. App. 818, 336 S.E.2d 436, 1985 N.C. App. LEXIS 4392 (1985).

To establish the right to dissent, under former G.S. 30-1 , a spouse had to make a timely filing, and to show an entitlement to that right. In re Estate of Outen, 77 N.C. App. 818, 336 S.E.2d 436, 1985 N.C. App. LEXIS 4392 (1985).

Time Limitations of Six Months. —

Former G.S. 30-1 allowed a surviving spouse six months from the probate of the will within which to dissent. Joyce v. Joyce, 260 N.C. 757 , 133 S.E.2d 675, 1963 N.C. LEXIS 803 (1963).

Time Is to Enable Surviving Spouse to Reach Intelligent Conclusion. —

Time is allowed by statute to enable the surviving spouse to make an examination into the value of the estate, the debts and liabilities, and for her to come to an intelligent conclusion as to the course she should pursue under all the circumstances that surround her. Joyce v. Joyce, 260 N.C. 757 , 133 S.E.2d 675, 1963 N.C. LEXIS 803 (1963).

Statute Tolled by Disability. —

The six-month period of limitation in former G.S. 30-2 for dissenting from a will in probate was a statute of limitations which could be tolled by G.S. 1-17 for a disability. In re Estate of Owens, 117 N.C. App. 118, 450 S.E.2d 2, 1994 N.C. App. LEXIS 1161 (1994).

Appointment of Guardian after Six Months. —

Where no guardian for an insane widow was appointed within six months after her husband’s will was proved, but one was subsequently appointed and he filed a dissent on her behalf on the day he was appointed, the widow was not barred by the statute of limitations in former G.S. 30-2, but could bring the action through a guardian as within three years after the disability was removed pursuant to G.S. 1-17 . Whitted v. Wade, 247 N.C. 81 , 100 S.E.2d 263, 1957 N.C. LEXIS 549 (1957).

Statute Ran Against Insane Widow from Appointment of Guardian. —

The statute of limitation provided in former G.S. 30-2 began to run against an insane widow’s right to dissent from the date a guardian was appointed. First-Citizens Bank & Trust Co. v. Willis, 257 N.C. 59 , 125 S.E.2d 359, 1962 N.C. LEXIS 558 (1962).

Although an insane widow received nothing in the will of her husband, the failure of her guardian to dissent for her within six months of his qualification barred her right of dissent under former G.S. 30-2 at the end of that period. First-Citizens Bank & Trust Co. v. Willis, 257 N.C. 59 , 125 S.E.2d 359, 1962 N.C. LEXIS 558 (1962).

When Dissent Timely. —

Under former G.S. 30-2, so long as the dissent was filed within six months after the issuance of letters testamentary, or extended pursuant to former G.S. 30-2(a), it was timely, regardless of whether the appraisal had been conducted. In re Estate of Cox, 32 N.C. App. 765, 233 S.E.2d 926, 1977 N.C. App. LEXIS 2058 , cert. denied, 292 N.C. 729 , 235 S.E.2d 783, 1977 N.C. LEXIS 1179 (1977).

Spouse Must File Within Time Limit Although Right Not Finally Established. —

A surviving spouse could and, in fact, had to file her dissent under former G.S. 30-1 within the statutory time period even though her right to dissent was not finally established until after the statutory time period had expired due to the necessity of ascertaining “net estate.” Phillips v. Phillips, 34 N.C. App. 428, 238 S.E.2d 790, 1977 N.C. App. LEXIS 1713 (1977), rev'd, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

C.Valuation

Constitutionality of Methods of Determining Values. —

The values which must be determined under the statutory procedure can be reasonably ascertained by the use of aids such as tax tables and expert witnesses, and the procedure is not constitutionally invalid. The procedure set forth in former statute did not approach that level of arbitrary governmental action necessary to support a claim of denial of due process. In re Estate of Kirkman, 38 N.C. App. 515, 248 S.E.2d 438, 1978 N.C. App. LEXIS 2229 (1978).

Contributions by Surviving Spouse Excluded. —

The plain meaning of former G.S. 30-1 completely excluded any property or interest in property to the extent that the surviving spouse gave, donated, contributed, or paid for it. Funk v. Masten, 126 N.C. App. 529, 485 S.E.2d 890, 1997 N.C. App. LEXIS 530 (1997).

Purposes for Which Established Value Binding under Former Statute. —

Any determination and establishment of value made as provided in former G.S. 30-1 was binding only for the purposes of determining whether there was a right of dissent. In re Kirkman, 302 N.C. 164 , 273 S.E.2d 712, 1981 N.C. LEXIS 1041 (1981).

Method for Determining Different Benefits. —

Former G.S. 30-1(c) provided a method by which to determine the value of benefits under the will and the benefits in case of intestacy. North Carolina Nat'l Bank v. Stone, 263 N.C. 384 , 139 S.E.2d 573, 1965 N.C. LEXIS 1289 (1965).

Right Mathematically Determined by Value of Property. —

Former G.S. 30-1 provided that when values were determined as set out therein, they would be final for determining the right of dissent and should be used exclusively for this purpose. No doubt when this legislation was enacted it was contemplated that the right to dissent would be thus mathematically established. In re Estate of Connor, 5 N.C. App. 228, 168 S.E.2d 245, 1969 N.C. App. LEXIS 1321 (1969).

Under former G.S. 30-1 , if A equalled the aggregate value of provisions under the will for the benefit of the surviving spouse and B equalled the value of property or interests in property passing in any manner outside the will to the surviving spouse as a result of the death of the testator, and C equalled the net estate of the decedent, then the surviving spouse was entitled to dissent from his wife’s will if A plus B was less than one-half of C; that is, if A + B < 1/2(C). In re Estate of Francis, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990).

Under former G.S. 30-1 , statutory scheme contemplated that the surviving spouse’s right of dissent would be established by a mathematical computation. Taylor v. Taylor, 301 N.C. 357 , 271 S.E.2d 506, 1980 N.C. LEXIS 1164 (1980).

Right Could Not Be Established Until Property Is Determined and Valued. —

In the absence of a determination and valuation of the property passing to the surviving spouse under the will and outside the will as of the date of the death of the deceased spouse as provided by former G.S. 30-1 , there could be no proper determination of whether the right to dissent had been established. When the property involved is determined and valued as provided by statute, then the right of dissent can be determined mathematically. In re Estate of Connor, 5 N.C. App. 228, 168 S.E.2d 245, 1969 N.C. App. LEXIS 1321 (1969).

Where the record was bare of any recitation of values necessary to determine if plaintiff could indeed dissent from decedent’s will under former G.S. 30-1 , and contained no findings or conclusions as to plaintiff’s right to dissent, the issue was not ripe for resolution and was nonjusticiable. Funk v. Masten, 121 N.C. App. 364, 465 S.E.2d 322, 1996 N.C. App. LEXIS 1 (1996).

Property Determined and Valued as of Date of Testator’s Death. —

Former statute, which permitted dissent in certain instances, also required that the property involved be determined and valued as of the date of death of the testator. The procedure was mandatory. In re Estate of Connor, 5 N.C. App. 228, 168 S.E.2d 245, 1969 N.C. App. LEXIS 1321 (1969).

Determination Made from Net, Not Gross, Estate. —

Former G.S. 30-1(c) did not require the intestate share to be determined, for purposes of establishing the right to dissent, from decedent’s gross estate valued as of the date of his death rather than from net estate. Phillips v. Phillips, 34 N.C. App. 428, 238 S.E.2d 790, 1977 N.C. App. LEXIS 1713 (1977), rev'd, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

In establishing the right of a surviving spouse to dissent pursuant to former G.S. 30-1(a)(1), the determination of intestate share would be based on the value of the decedent’s net estate, as provided in Chapter 29, G.S. 29-1 et seq. Phillips v. Phillips, 34 N.C. App. 428, 238 S.E.2d 790, 1977 N.C. App. LEXIS 1713 (1977), rev'd, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Computation of Net Estate. —

To ascertain “net estate” under G.S. 29-2(5) , it is necessary to subtract from the value of the gross estate, “family allowances, costs of administration, and all lawful claims against the estate.” Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Since the intestate share of any surviving spouse, or other heir, is ordinarily a percentage of the decedent’s net estate, for purposes of former G.S. 30-1 , the amount of the net estate had to be determined within limits which would permit the court to ascertain with substantial accuracy whether the value of the intestate share of the surviving spouse was less or greater than the value of the property passing to her in and outside the will. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Value Seldom Determined with Complete Accuracy Prior to Final Account. —

Prior to the time the personal representative files his final account, it will seldom, if ever, be possible to determine with complete accuracy the value of the testator’s net estate and the intestate share of the surviving spouse. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Estimating Value of Net Estate. —

Under former G.S. 30-1 , the right to dissent was to be determined by the clerk whenever, in his judgment, the value of the “net estate” could be estimated with reasonable accuracy, rather than such time as the actual value of the net estate could be ascertained, i.e., at the time of distribution. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Property Owned as Tenants by Entirety. —

Under former G.S. 30-1 , the value of real property owned by couple as tenants by the entirety was not to be included in testatrix’s net estate. In re Estate of Francis, 94 N.C. App. 744, 381 S.E.2d 484, 1989 N.C. App. LEXIS 647 (1989), rev'd, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990).

Real property held as tenants by the entirety could not be included in net estate for purposes of determining right to dissent under former G.S. 30-1 . In re Estate of Francis, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990).

For purposes of former G.S. 30-1 , real property owned by the entireties was included in the value of property passing to surviving spouse outside the will as a result of the death of the testator. In re Estate of Francis, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990).

Funds held by testator-spouse in joint tenancy with right of survivorship with third party established pursuant to G.S. 41-2.1(a) did not become part of testator-spouse’s net estate for purposes of former G.S. 30-1 . In re Estate of Francis, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990).

Listing Survivorship Accounts on 90-Day Inventory Did Not Make Those Accounts Part of Net Estate. —

Fact that executrix listed one-half of funds in survivorship accounts on 90-day inventory to comply with G.S. 41-2.1(b)(3) and (b)(4) did not make the funds part of the net estate for purposes of determining her right to dissent under former G.S. 30-1 . In re Estate of Francis, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990).

Bank Account Held as Joint Tenants. —

Where testatrix retained complete control over the assets of the bank account held by herself and her husband as joint tenants with right of survivorship until the moment of her death, public policy expressed in the former dissent statutes would be served by including in the net estate for purposes of the dissent statute the value of the bank accounts. In re Estate of Francis, 94 N.C. App. 744, 381 S.E.2d 484, 1989 N.C. App. LEXIS 647 (1989), rev'd, 327 N.C. 101 , 394 S.E.2d 150, 1990 N.C. LEXIS 580 (1990).

Property Given or Paid for by Surviving Spouse. —

The plain meaning of former G.S. 30-1 completely excluded any property or interest in property to the extent that the surviving spouse gave, donated, contributed, or paid for it. Once the property was excluded, no other valuation as to that specific property could be made. Funk v. Masten, 126 N.C. App. 529, 485 S.E.2d 890, 1997 N.C. App. LEXIS 530 (1997).

Property Held as Tenants by Entirety and Paid for by Surviving Spouse. —

For purposes of calculating the surviving spouse’s right to dissent (right to claim an elective share), none of the value of the property owned as tenants by the entirety could be included in the value of property passing outside the will to the surviving spouse when the surviving spouse contributed the total purchase price of the property. Funk v. Masten, 126 N.C. App. 529, 485 S.E.2d 890, 1997 N.C. App. LEXIS 530 (1997).

Federal estate tax was a “lawful claim” against testator’s estate, for purposes of former G.S. 30-1 and the widow’s intestate share of the estate was to be computed after its deduction. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Variance between Valuations and Ultimate Distributive Share. —

The language of former G.S. 30-1(c), which established a valuation procedure for the purpose of establishing the right of dissent and mandated that the value so determined be used exclusively for that purpose, indicated that the General Assembly anticipated a variance between this valuation and the ultimate distributive share. Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Clerk’s Approval of Valuation Required. —

To establish her entitlement to the right of dissent under former G.S. 30-1 , surviving spouse was required to obtain the clerk’s approval of the value of the property passing to her under and outside her husband’s will as of the date of his death. Greene v. Lynch, 51 N.C. App. 665, 277 S.E.2d 454, 1981 N.C. App. LEXIS 2291 (1981).

Agreement as to Valuation. —

Under former G.S. 30-1 , absent a showing that the parties failed to act in an arm’s length manner, or that the rights of creditors of the estate would be adversely affected thereby, it was proper for the clerk ought to abide by an agreement as to the valuation of the estate and the testate and intestate shares thereof. Taylor v. Taylor, 301 N.C. 357 , 271 S.E.2d 506, 1980 N.C. LEXIS 1164 (1980).

Agreement Between Personal Representative and Dissenting Spouse as to Net Estate. —

Where the testator’s personal representative and the dissenting spouse, dealing at arm’s length, were able to agree upon the value of the “net estate,” the clerk or the court would ordinarily abide by this agreement in determining the right to dissent under former G.S. 30-1 . Phillips v. Phillips, 296 N.C. 590 , 252 S.E.2d 761, 1979 N.C. LEXIS 1118 (1979).

Compliance with Statute. —

Where plaintiff filed a dissent to her late husband’s will, pursuant to former G.S. 30-1 , and the administrator with the will annexed and the other devisees under the will implicitly assented to the wife’s valuation of the estate and her testate and intestate shares thereof by conceding her right to dissent from the will, the parties complied with the provisions of former G.S. 30-1 (c) with respect to an agreement as to valuation except for procuring the approval of the clerk of their valuation. Taylor v. Taylor, 301 N.C. 357 , 271 S.E.2d 506, 1980 N.C. LEXIS 1164 (1980).

§ 30-3.5. Satisfaction of elective share.

  1. Repealed by Session Laws 2009-368, s. 1, effective August 27, 2009, and applicable to decedents dying on or after October 1, 2009. (a1) Apportionment. — The personal representative shall apportion the liability to the surviving spouse for the amount of the elective share among all responsible persons as follows:
    1. The net value of each nonspousal asset shall be determined by calculating the value of the nonspousal asset under G.S. 30-3.3 A and reducing such value by that portion of the claims (including year’s allowances to persons other than the surviving spouse) payable out of, charged against, or otherwise properly allocable to the nonspousal asset.
    2. Using the net value of each nonspousal asset as determined under subdivision (1) of this subsection, the personal representative shall determine each responsible person’s liability to the surviving spouse by multiplying the amount of the elective share by a fraction, the numerator of which is the net value of the responsible person’s nonspousal assets and the denominator of which is the net value of all of the nonspousal assets.

      (a2) Recovery From Responsible Persons. — In recovering assets from responsible persons, the following rules apply:

      (1) To the extent the personal representative is a responsible person, the personal representative shall satisfy its liability to the surviving spouse out of its nonspousal assets according to the following order of priority:

      1. The personal representative shall satisfy its liability out of the net value of the nonspousal assets passing by intestate succession by allocating the liability proportionately among each intestate heir based on the fraction of the net value of the nonspousal assets passing by intestate succession that each intestate heir is entitled to receive.
      2. If the net value of the nonspousal assets passing by intestate succession is not sufficient to satisfy the personal representative’s liability in full, the personal representative shall satisfy its remaining liability out of the net value of the nonspousal assets passing as part of the decedent’s residuary estate by allocating the liability proportionately among each beneficiary of the decedent’s residuary estate based on the fraction of the net value of the nonspousal assets passing as part of the decedent’s residuary estate that each residuary beneficiary is entitled to receive.
      3. If the net value of the nonspousal assets in the residuary estate is not sufficient to satisfy the personal representative’s liability in full, the personal representative shall satisfy its remaining liability by allocating the remaining liability proportionately among each other beneficiary of the decedent’s will based on the fraction of the net value of the remaining nonspousal assets each other beneficiary is entitled to receive.

        (2) The personal representative shall recover from each other responsible person the responsible person’s liability to the surviving spouse.

    3. Each responsible person, including the personal representative in its capacity as a responsible person, may elect to satisfy its liability in full by any of the following methods:
      1. Conveyance of that portion of the responsible person’s nonspousal assets (or identical substitute assets), valued on the date of conveyance, sufficient to satisfy the responsible person’s liability; or, if the value of the responsible person’s nonspousal assets on the date of conveyance is less than the responsible person’s liability, conveyance of all of the responsible person’s nonspousal assets (or identical substitute assets).
      2. Payment of the liability in cash.
      3. Payment of the liability in other property upon written agreement of the surviving spouse at values agreed by the surviving spouse for purposes of determining the extent of the liability satisfied.
      4. Any combination of the payment methods set forth under sub-subdivision a. through d. of this subdivision, provided that the total value of assets conveyed by the responsible person equals such responsible person’s liability.

        (a3) Inability or Refusal to Pay. — The personal representative shall be entitled to petition the clerk of court for an order requiring any responsible person to satisfy its liability. Upon refusal of a responsible person to obey such an order, the personal representative shall be entitled to a judgment against such responsible person in the amount of the liability and to any other remedies the clerk deems appropriate. Although the responsible person shall remain primarily liable for such responsible person’s liability for the elective share, the following rules apply:

        (1) If the responsible person makes a gratuitous transfer, whether inter vivos or by testate or intestate succession, of all or any part of the responsible person’s nonspousal assets or the proceeds thereof after the decedent’s death, then the gratuitous transferee shall be liable for the amount transferred, and the personal representative shall be entitled to recover that amount from the transferee as if the transferee were the responsible person.

        (2) If the responsible person is a fiduciary and makes a distribution of all or any part of the responsible person’s nonspousal assets or the proceeds thereof after the decedent’s death, then the distributee shall be liable for the amount transferred, and the personal representative shall be entitled to recover that amount from the distributee as if the distributee were the responsible person.

        If, after exhausting all other remedies in this section, the personal representative cannot reasonably recover a responsible person’s liability, then, with the approval of the clerk, the defaulting responsible person’s liability shall be apportioned on a pro rata basis among the responsible persons who have not defaulted. Each nondefaulting other responsible person shall be liable for the amount of the liability apportioned to it in the same manner and to the same extent as its original liability for the elective share; provided, that each responsible person’s liability shall not exceed the responsible person’s proportionate share of the value of the nonspousal assets based on the values used in determining Total Net Assets. Each nondefaulting other responsible person shall be entitled to a proportionate share of any judgment against or subsequent recovery of the liability from the defaulting responsible person.

  2. Standstill Order. —  After the filing of the petition demanding an elective share, the personal representative, surviving spouse, or any responsible person may request the clerk to issue an order that any responsible person not dispose of all or a portion of the decedent’s Total Net Assets or the proceeds thereof pending the payment of the elective share. The decision to issue such an order shall be in the discretion of the clerk. A person who violates the standstill order may be held in civil contempt of court pursuant to Article 5A of Chapter 2 of the General Statutes. The clerk shall enter an order terminating the standstill order upon the clerk’s determination that the standstill order is no longer necessary or desirable.
  3. , (d) Repealed by Session Laws 2009, c. 368, s. 1, effective August 27, 2009, and applicable to decedents dying on or after October 1, 2009.

    (e) Bond. — If a responsible person distributes or disposes of nonspousal assets prior to final apportionment of the elective share and expenses, the personal representative may require the responsible person or the transferee to provide a bond or other security for the responsible person’s liability for payment of the elective share and apportioned expenses in the form and amount prescribed by the personal representative, with the approval of the clerk.

History. 2000-178, s. 2; 2009-368, s. 1.

Effect of Amendments.

Session Laws 2009-368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009, rewrote the section.

Legal Periodicals.

For article, “The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina,” see 87 N.C.L. Rev. 1869 (2009).

CASE NOTES

Editor’s Note. —

The cases below were decided under former G.S. 30-1 to 30-3 and corresponding prior provisions, relating to the right to dissent.

Allocation so as to Cause Least Disruption of Decedent’s Plan. —

When a surviving spouse dissented from a will under former G.S. 30-1 et seq., the intestate share was to be allocated so as to cause the least possible disruption of the decedent’s plan for the distribution of his estate. Insofar as possible the beneficiaries of the will were to receive the property testatrix intended for them to receive. In re Estate of Etheridge, 33 N.C. App. 585, 235 S.E.2d 924, 1977 N.C. App. LEXIS 2256 (1977).

Property from Which General Legacies Come as Asset. —

When the property from which general legacies must come provides income, it is a general asset of the estate subject to the payment of debts and disposition under the terms of the will; hence, under former G.S. 30-1 et seq., where a widow dissented, it would be proportionately distributed to her under the applicable statute. First Union Nat'l Bank v. Melvin, 259 N.C. 255 , 130 S.E.2d 387, 1963 N.C. LEXIS 541 (1963).

§ 30-3.6. Waiver of rights.

  1. The right of a surviving spouse to claim an elective share may be waived, wholly or partially, before or after marriage, with or without consideration, by a written waiver signed by the surviving spouse, by the surviving spouse’s attorney-in-fact if the surviving spouse’s power of attorney expressly authorizes the attorney-in-fact to do so or to generally engage in estate transactions, or, with approval of court, by the guardian of the surviving spouse’s estate or general guardian.
  2. A waiver is not enforceable if the surviving spouse proves that:
    1. The waiver was not executed voluntarily; or
    2. The surviving spouse or the surviving spouse’s representative making the waiver was not provided a fair and reasonable disclosure of the property and financial obligations of the decedent, unless the surviving spouse waived, in writing, the right to that disclosure.
  3. A written waiver that would have been effective to waive a spouse’s right to dissent in estates of decedents dying on or before December 31, 2000, under Article 1 of Chapter 30 of the General Statutes is effective to waive that spouse’s right of elective share under this Article for estates of decedents dying on or after January 1, 2001.

History. 2000-178, s. 2; 2003-296, s. 5; 2004-203, s. 30; 2009-368, s. 1.

Effect of Amendments.

Session Laws 2004-203, s. 30, effective August 17, 2004, substituted “decedents” for “decedent’s” in subsection (c).

Session Laws 2009-368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009, in subsection (a), added “by the surviving spouse’s attorney-in-fact if the surviving spouse’s power of attorney expressly authorizes the attorney-in-fact to do so or to generally engage in estate transactions, or, with approval of court, by the guardian of the surviving spouse’s estate or general guardian” at the end; and in subdivision (b)(2), inserted “or the surviving spouse’s representative making the waiver” near the beginning.

CASE NOTES

Editor’s Note. —

The cases below were decided under former G.S. 30-1 to 30-3 and corresponding prior provisions, relating to the right to dissent.

Family settlement agreements are favored by the law; however, such an agreement is invalid unless all who receive under the will join in the agreement. In re Estate of Outen, 77 N.C. App. 818, 336 S.E.2d 436, 1985 N.C. App. LEXIS 4392 (1985).

Alleged agreement between widow and estate was not a “family settlement agreement,” where it was never executed by all of the beneficiaries under the will. In re Estate of Outen, 77 N.C. App. 818, 336 S.E.2d 436, 1985 N.C. App. LEXIS 4392 (1985).

Release of Right Held Effective. —

Although husband’s release did not enumerate the statutory right to dissent under former G.S. 30-1 , where it did release “all rights or claims of curtesy, inheritance, descent, and distribution and all other rights or claims growing out of the marital relationship between the parties . . . [and] all rights in the estate of the said wife, real, personal and mixed, now owned or hereafter acquired by her,” this full and final settlement of such rights encompassed the unenumerated statutory right of dissent under former statute. In re Estate of Tucci, 94 N.C. App. 428, 380 S.E.2d 782, 1989 N.C. App. LEXIS 543 (1989), aff'd, 326 N.C. 359 , 388 S.E.2d 768, 1990 N.C. LEXIS 111 (1990).

Release Held Not Rescinded by Resumption of Cohabitation. —

Where husband and wife’s combined separation agreement and property settlement expressly provided that in the event of resumption of cohabitation by the parties the separation agreement and property settlement would remain in full force and effect, and there was no other evidence of rescission, the couple’s reconciliation prior to the wife’s death did not imply a rescission of husband’s release of his right to dissent under former section. In re Estate of Tucci, 94 N.C. App. 428, 380 S.E.2d 782, 1989 N.C. App. LEXIS 543 (1989), aff'd, 326 N.C. 359 , 388 S.E.2d 768, 1990 N.C. LEXIS 111 (1990).

Article 2. Dower. [Repealed]

§§ 30-4 through 30-8. [Repealed]

Repealed by Session Laws 1959, c. 879, s. 14.

Cross References.

As to abolition of the estate of dower, see G.S. 29-4 .

§ 30-9. [Repealed]

Repealed by Session Laws 1965, c. 853.

Cross References.

For present provisions as to conveyance without joinder of incompetent spouse, see G.S. 39-7 .

§ 30-10. [Repealed]

Repealed by Session Laws 1959, c. 879, s. 14.

Editor’s Note.

The act repealing this section inserted a new Chapter 29 entitled “Intestate Succession.”

Article 3. Allotment of Dower. [Repealed]

§§ 30-11 through 30-14. [Repealed]

Repealed by Session Laws 1959, c. 879, s. 14.

Editor’s Note.

The act repealing these sections inserted a new Chapter 29 entitled “Intestate Succession.”

Article 4. Year’s Allowance.

Part 1. Nature of Allowance.

§ 30-15. When spouse entitled to allowance.

Every surviving spouse of an intestate or of a testator, whether or not the surviving spouse has petitioned for an elective share, shall, unless the surviving spouse has forfeited the surviving spouse’s right thereto, as provided by law, be entitled, out of the personal property of the deceased spouse, to an allowance of the value of sixty thousand dollars ($60,000) for the surviving spouse’s support for one year after the death of the deceased spouse. The surviving spouse may claim the allowance if, at the death of the decedent, either the decedent or the surviving spouse was a resident of this State. Such allowance shall be exempt from any lien, by judgment or execution, acquired against the property of the deceased spouse, and shall, in cases of testacy, be charged against the share of the surviving spouse.

History. 1868-9, c. 93, s. 81; 1871-2, c. 193, s. 44; 1880, c. 42; Code, s. 2116; 1889, c. 499, s. 2; Rev., s. 3091; C.S., s. 4108; 1953, c. 913, s. 1; 1961, c. 316, s. 1; c. 749, s. 1; 1969, c. 14; 1981, c. 413, s. 1; 1995, c. 262, s. 4; 2000-178, s. 4; 2009-183, s. 1; 2011-344, s. 7; 2013-81, s. 1; 2018-40, s. 9.1; 2019-113, s. 3.

Cross References.

As to right of elective share, see G.S. 30-3.1 et seq.

As to allowance to children, see G.S. 30-17 .

As to property subject to allowance, see G.S. 30-18 .

Editor’s Note.

Session Laws 2018-40, s. 9.1, which amended this section, is located in Part IX of Session Laws 2018-40. Section 9.2 of that act provides, “This section becomes effective January 1, 2019, and applies to allowance applications made on or after that date.” The reference to “This section” in Section 9.2 appears to have been in error and “This Part” was apparently the intended wording. Section 15 of the act provides that, except as otherwise provided, the act is effective when it becomes law.

Session Laws 2018-40, s. 14, is a severability clause.

Session Laws 2019-113, s. 7, made the second sentence, as added by Session Laws 2019-113, s. 3, effective July 11, 2019, and applicable to decedents dying, estates filed, and pleadings filed on or after that date.

Effect of Amendments.

Session Laws 2009-183, s. 1, effective January 1, 2010, and applicable to estates of individuals dying on or after that date, substituted “twenty thousand dollars ($20,000)” for “ten thousand dollars ($10,000),” and made gender neutral changes in the first sentence.

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the first sentence, substituted “whether or not the surviving spouse” for “whether or not he or she” and “the surviving spouse’s” for “his or her.”

Session Laws 2018-40, s. 9.1, substituted “sixty thousand dollars ($60,000)” for “thirty thousand dollars ($30,000)” in the first sentence. For effective date and applicability, see editor’s note.

Session Laws 2019-113, s. 3, inserted the second sentence. For effective date and applicability, see Editor’s note.

Legal Periodicals.

For brief comment on the 1953 amendment, see 31 N.C.L. Rev. 376 (1953).

For survey of 1978 property law, see 57 N.C.L. Rev. 1103 (1979).

For survey of 1979 property law, see 58 N.C.L. Rev. 1059 (1980).

CASE NOTES

Purely Statutory Right. —

The right of a widow to a year’s support is purely statutory. Broadnax v. Broadnax, 160 N.C. 432 , 76 S.E. 216, 1912 N.C. LEXIS 185 (1912). See Drewry v. Raleigh Sav. Bank & Trust Co., 173 N.C. 664 , 92 S.E. 593, 1917 N.C. LEXIS 367 (1917); Jones v. Callahan, 242 N.C. 566 , 89 S.E.2d 111, 1955 N.C. LEXIS 615 (1955); Overton v. Overton, 259 N.C. 31 , 129 S.E.2d 593, 1963 N.C. LEXIS 480 (1963).

Legislative Intent. —

The North Carolina Legislature intentionally did not impose a notice requirement with respect to the statutory right to a year’s allowance. In re Estate of Archibald, 183 N.C. App. 274, 644 S.E.2d 264, 2007 N.C. App. LEXIS 1046 (2007).

If the wife dies intestate, the husband has the same right as a widow. First Union Nat'l Bank v. Melvin, 259 N.C. 255 , 130 S.E.2d 387, 1963 N.C. LEXIS 541 (1963).

Under this section as rewritten, for the first time in our law a husband may be entitled to a year’s allowance. First Union Nat'l Bank v. Melvin, 259 N.C. 255 , 130 S.E.2d 387, 1963 N.C. LEXIS 541 (1963).

Allowance Is Not “Intestate Share”. —

The year’s allowance for the surviving spouse under the provisions of this section is not a part of the “intestate share” passing to a surviving spouse under the provisions of Chapter 29 of the General Statutes, known as the Intestate Succession Act. In re Estate of Connor, 5 N.C. App. 228, 168 S.E.2d 245, 1969 N.C. App. LEXIS 1321 (1969).

A widow who has dissented from her husband’s will takes her year’s allowance in addition to her statutory share in his estate. First Union Nat'l Bank v. Melvin, 259 N.C. 255 , 130 S.E.2d 387, 1963 N.C. LEXIS 541 (1963).

The phrase “and shall, in cases of testacy, be charged against the share of the surviving spouse,” refers only to the share of a widow who takes in accordance with the will and has not dissented from it. First Union Nat'l Bank v. Melvin, 259 N.C. 255 , 130 S.E.2d 387, 1963 N.C. LEXIS 541 (1963).

Priority over Creditors. —

The widow is given her right to a year’s support against all general creditors, but no better title to the property assigned her than her husband had. She is entitled to her year’s allowance in preference to the special lien acquired by an execution bearing teste prior to the husband’s death. In regard to other liens and equities, she takes the property in the same manner and plight in which her husband held it. Williams v. Jones, 95 N.C. 504 , 1886 N.C. LEXIS 295 (1886).

Widow’s priority extends over funeral expenses and costs of administration. Denton v. Tyson, 118 N.C. 542 , 24 S.E. 116, 1896 N.C. LEXIS 90 (1896).

Mortgage Registered after Husband’s Death. —

Where a husband mortgaged a horse, but the mortgage was not registered until after his death, and prior to its registration the horse was assigned to the widow as a part of her year’s support, it was held that the widow took the property subject to the mortgage lien. Williams v. Jones, 95 N.C. 504 , 1886 N.C. LEXIS 295 (1886); Coastal Sales Co. v. Weston, 245 N.C. 621 , 97 S.E.2d 267, 1957 N.C. LEXIS 648 (1957).

Will Cannot Deprive Surviving Spouse of Allowance. —

The General Assembly did not intend that if the testator left a will under the terms of which the surviving spouse received nothing from his personal property, that the spouse was deprived of an allowance. In re Estate of Brown, 40 N.C. App. 61, 251 S.E.2d 905, 1979 N.C. App. LEXIS 2572 (1979).

The General Assembly did not intend that if the deceased left a will under the terms of which the surviving spouse received only what she would have received by law as her own property, that the surviving spouse is deprived of an allowance from the deceased’s personal property. In re Estate of Brown, 40 N.C. App. 61, 251 S.E.2d 905, 1979 N.C. App. LEXIS 2572 (1979).

Where the decedent left a will under the terms of which his surviving spouse did not receive any legacy from his personal property, she could take her allowance out of his personal property, which would not include the proceeds from an insurance policy or her share of a joint bank account. In re Estate of Brown, 40 N.C. App. 61, 251 S.E.2d 905, 1979 N.C. App. LEXIS 2572 (1979).

Proceeds from Joint Bank Account Are Not Personal Property of Decedent. —

Proceeds from a joint bank account were paid to a surviving spouse under the terms of the contract setting up the account, and were her property and not the “personal property of the deceased spouse.” In re Estate of Brown, 40 N.C. App. 61, 251 S.E.2d 905, 1979 N.C. App. LEXIS 2572 (1979).

Deduction of Year’s Allowance from Widow’s Distributive Share Proper. —

G.S. 30-27 merely outlined an alternative procedural method to pursue larger allowances in superior court and should, in all other ways, have been treated in like manner with allowances administered pursuant to G.S. 30-15 ; there was no error in a trial court’s order charging the year’s allowance paid to the decedent’s widow against the widow’s distributive share. Bryant v. Bowers, 182 N.C. App. 338, 641 S.E.2d 855, 2007 N.C. App. LEXIS 583 (2007).

Proceeds from Insurance Policy Are Not Personal Property of Decedent. —

Proceeds from an insurance policy were paid to a surviving spouse in accordance with her rights under the insurance contract, and was not the “personal property of the deceased spouse.” In re Estate of Brown, 40 N.C. App. 61, 251 S.E.2d 905, 1979 N.C. App. LEXIS 2572 (1979).

Award under Will as Estoppel. —

Where the widow and the executor by mutual consent selected three men to lay off to the widow her year’s support, provided for her in the husband’s will, which was done, and both parties assented to the report in writing, it was held that the widow in the absence of fraud and undue influence was estopped by the award and cannot maintain a proceeding under this section. Flippin v. Flippin, 117 N.C. 376 , 23 S.E. 321, 1895 N.C. LEXIS 74 (1895).

Antenuptial Contract as a Bar. —

A widow is barred from recovering a year’s support by an antenuptial contract relinquishing all claim to any property of her husband. Perkins v. Brinkley, 133 N.C. 86 , 45 S.E. 465, 1903 N.C. LEXIS 19 (1903); In re Estate of Cline, 103 N.C. App. 83, 404 S.E.2d 178, 1991 N.C. App. LEXIS 567 (1991).

The portion of a judgment awarding widow a year’s allowance and life estate in the marital home was vacated, and the portion of the judgment awarding plaintiff spousal support during deceased husband’s incompetency up to the date of his death was affirmed, where prior to marriage, husband and wife entered into an agreement whereby each reciprocally released, renounced and quitclaimed any interest acquired by virtue of the marriage in and to any real or personal property then owned or thereafter acquired, and specifically renounced and disclaimed any right to inherit or participate in the distribution of any real and personal property of the other spouse. In re Estate of Cline, 103 N.C. App. 83, 404 S.E.2d 178, 1991 N.C. App. LEXIS 567 (1991).

Any or all of the marital rights under this section may be surrendered by a properly drawn separation agreement complying with the requirements of former G.S. 52-6 . Lane v. Scarborough, 19 N.C. App. 32, 198 S.E.2d 45, 1973 N.C. App. LEXIS 1558 , rev'd, 284 N.C. 407 , 200 S.E.2d 622, 1973 N.C. LEXIS 874 (1973).

When Husband Dies a Citizen of Another State. —

It has been held that the widow of a man who dies a citizen of another state is not entitled to a year’s support out of the assets of the decedent in this State, and the fact that she became a citizen of this State after her husband’s death is immaterial, since her relations to the estate and her right to share in it are fixed at the intestate’s death, and by the laws of his domicile. Simpson v. Cureton, 97 N.C. 112 , 2 S.E. 668, 1887 N.C. LEXIS 121 (1887). See Medley v. Dunlap, 90 N.C. 527 , 1884 N.C. LEXIS 267 (1884).

A widow whose husband died domiciled in another state is entitled to her year’s support in this State in which there is a fund due her husband, if the widow is a bona fide resident in the State. The reason given for this ruling is that the fiction of personal property being considered as belonging to the domicile of the owner applies only to the distribution of the assets of the one deceased, and has no application to payment of debts, legacies, costs of administration, etc. Jones v. Layne, 144 N.C. 600 , 57 S.E. 372, 1907 N.C. LEXIS 190 (1907). See also Moye v. May, 43 N.C. 131 , 1851 N.C. LEXIS 205 (1851), aff'd, 54 N.C. 84 , 1853 N.C. LEXIS 49 (1853); Kimball v. Deming, 27 N.C. 418 , 1845 N.C. LEXIS 126 (1845); In re Hayes, 112 N.C. 76 , 16 S.E. 904, 1893 N.C. LEXIS 167 (1893).

Agreement to Satisfy Allowance Proper. —

Trial court properly allowed an estate’s motion to satisfy the deficiency judgment awarded to the surviving spouse for her statutory allowance out of the surplus proceeds from the sale of real property because the parties expressly agreed that the estate would pay the deficiency judgment from the surplus sale proceeds; the law did not prohibit the creation and recognition of a private contractual claim to such proceeds where all other debts of the estate had been satisfied. In re Estate of Giddens, 270 N.C. App. 282, 841 S.E.2d 302, 2020 N.C. App. LEXIS 172 (2020).

Judicial Review. —

Trial court applied the wrong standard of review to an executor’s appeal of a clerk’s order requiring a widow be paid a deficiency for the widow’s year’s allowance as a surviving spouse because the order did not indicate the court applied the statutorily required deferential standard but instead disregarded the clerk’s findings of fact and conducted a de novo review, requiring that the trial court’s order be vacated. In re Estate of Johnson, 264 N.C. App. 27, 824 S.E.2d 857, 2019 N.C. App. LEXIS 157 (2019).

OPINIONS OF ATTORNEY GENERAL

Widow Who Moved to State after Husband’s Death Not Entitled to Allowance. — See opinion of Attorney General to Honorable Fred Proffitt, Clerk of Superior Court, Yancey County, 40 N.C. Op. Att'y Gen. 35 (1969).

§ 30-16. Duty of personal representative, magistrate, or clerk to assign allowance.

It shall be the duty of every administrator, collector, or executor of a will, on application in writing, signed by the surviving spouse, at any time within one year after the death of the deceased spouse, to assign to the surviving spouse the year’s allowance as provided in this Article.

If there shall be no administration, or if the personal representative shall fail or refuse to apply to a magistrate or clerk of court, as provided in G.S. 30-20 , for 10 days after the surviving spouse has filed the aforesaid application, or if the surviving spouse is the personal representative, the surviving spouse may make application to the magistrate or clerk, and it shall be the duty of the magistrate or clerk to proceed in the same manner as though the application had been made by the personal representative.

Where any personal property of the deceased spouse shall be located outside the township or county where the deceased spouse resided at the time of the deceased spouse’s death, the personal representative or the surviving spouse may apply to any magistrate or to any clerk of court of any township or county where such personal property is located, and it shall be the duty of such magistrate or clerk to assign the year’s allowance as if the deceased spouse had resided and died in that township.

History. 1868-9, c. 93, s. 12; 1870-1, c. 263; Code, ss. 2120, 2122; 1889, cc. 496, 531; 1891, c. 13; Rev., ss. 3096, 3098; C.S., ss. 4113, 4115; 1961, c. 749, s. 2; 1971, c. 528, s. 21; 1997-310, s. 1; 2011-344, s. 7.

Effect of Amendments.

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “the deceased spouse’s death” for “his death” in the last paragraph.

CASE NOTES

Widow’s Allowance Is Terminable. —

The administrator is only under a duty to assign the year’s allowance upon written application of the widow, signed by her, and within one year from the decedent’s death and if these requirements are not met, there is no duty to assign the allowance; therefore, it is terminable. Wachovia Bank & Trust Co. v. United States, 234 F. Supp. 897, 1964 U.S. Dist. LEXIS 6507 (M.D.N.C. 1964).

Therefore Not Part of Marital Deduction for Estate Tax Purposes. —

The widow’s year’s allowance being terminable is not part of the marital deduction for estate tax purposes. Wachovia Bank & Trust Co. v. United States, 234 F. Supp. 897, 1964 U.S. Dist. LEXIS 6507 (M.D.N.C. 1964).

Next Friend as Representative of Minor Widow. —

In dissenting from her husband’s will and applying for a year’s allowance, the widow, being a minor without guardian, may be represented by a next friend, duly appointed. Hollmon v. Hollmon, 125 N.C. 29 , 34 S.E. 99, 1899 N.C. LEXIS 162 (1899).

§ 30-17. When children entitled to an allowance.

Whenever any parent dies survived by any child under the age of 18 years, including an adopted child or a child with whom the widow may be pregnant at the death of her husband, or a child who is less than 22 years of age and is a full-time student in any educational institution, or a child under 21 years of age who has been declared mentally incompetent, or a child under 21 years of age who is totally disabled, or any other person under the age of 18 years residing with the deceased parent at the time of death to whom the deceased parent or the surviving parent stood in loco parentis, every such child shall be entitled to receive an allowance of five thousand dollars ($5,000) for the child’s support for the year next ensuing the death of the parent. The allowance shall be in addition to the child’s share of the deceased parent’s estate and shall be exempt from any lien by judgment or execution against the property of the deceased parent. The personal representative of the deceased parent shall, within one year after the parent’s death, assign to every such child the allowance herein provided for; but if there is no personal representative or if the personal representative fails or refuses to act within 10 days after written application by a guardian or next friend on behalf of the child, the allowance may be assigned by a magistrate or clerk of court upon application.

If the child resides with the surviving spouse of the deceased parent at the time the allowance is paid, the allowance shall be paid to the surviving spouse for the benefit of the child. If the child resides with its surviving parent who is other than the surviving spouse of the deceased parent, the allowance shall be paid to the surviving parent for the use and benefit of the child. The payment shall be made regardless of whether the deceased died testate or intestate or whether the surviving spouse petitioned for an elective share under Article 1A of Chapter 30 of the General Statutes. Provided, however, the allowance shall not be available to a deceased father’s child born out of wedlock, unless the deceased father has recognized the paternity of the child by deed, will, or other paper-writing, or unless the deceased father died prior to or within one year after the birth of the child and is established to have been the father of the child by DNA testing. If the child does not reside with a surviving spouse or a surviving parent when the allowance is paid, the allowance shall be paid to the child’s general guardian or guardian of the estate, if any, and if none, to the clerk of the superior court who shall receive and disburse the allowance for the benefit of the child.

History. 1889, c. 496; Rev., s. 3094; C.S., s. 4111; 1939, c. 396; 1953, c. 913, s. 2; 1961, c. 316, s. 2; c. 749, s. 3; 1969, c. 269; 1971, c. 528, s. 22; 1973, c. 1411; 1975, c. 259; 1981, c. 413, s. 2; c. 599, s. 7; 1995, c. 262, s. 5; 1997-310, s. 2; 2005-225, s. 1; 2011-344, s. 7; 2012-71, ss. 2(a), 3; 2013-198, s. 13; 2017-158, s. 5.

Effect of Amendments.

Session Laws 2012-71, s. 2(a), effective June 26, 2012, in the first paragraph, substituted “the parent” for “such parent” at the end of the first sentence, in the second sentence, substituted “The allowance” for “Such allowance”, and substituted “the deceased parent” for “such parent”, and in the third sentence, substituted “application” for “request”, added “or next friend”, substituted “the child” for “such child” and deleted “of said guardian” at the end; in the second paragraph, in the first and second sentences, substituted “surviving spouse of” for “widow of”, and substituted “the allowance” for “such allowance”, in the first sentence substituted “the surviving spouse for” for “said widow for”, and substituted “the child” for “such child”, in the second sentence substituted “the surviving” for “such surviving”, and substituted “the child” for “such child, regardless of whether the deceased died testate or intestate or whether the widow dissented from the will”; added the third sentence, in the fourth sentence, substituted “the deceased” for “such deceased”, “has” for “shall have”, “the illegitimate” for “such illegitimate” and made a minor punctuation change, and in the fourth sentence, added “surviving spouse or a surviving”, substituted “the allowance” for “same”, and “of the child” for “of such child.”

Session Laws 2012-71, s. 3, effective January 1, 2013, substituted “five thousand dollars ($5,000)” for “two thousand dollars ($2,000)” in the first paragraph. For applicability, see editor’s note.

Session Laws 2013-198, s. 13, effective June 26, 2013, in the third sentence of the second paragraph, substituted “a deceased father’s child born out of wedlock” for “an illegitimate child of a deceased father,” deleted “illegitimate” preceding “child by deed”, and added “or unless the deceased father died prior to or within one year after the birth of the child and is established to have been the father of the child by DNA testing”. For applicability, see editor’s note.

Session Laws 2017-158, s. 5, effective July 21, 2017, substituted “child’s general guardian or guardian of the estate” for “child’s general guardian” near the middle of the last sentence.

Legal Periodicals.

For background and effect of section, see 17 N.C.L. Rev. 357 (1939).

For brief comment on the 1953 amendment, see 31 N.C.L. Rev. 376 (1953).

CASE NOTES

As to purpose of this and foregoing sections, see Kimball v. Deming, 27 N.C. 418 , 1845 N.C. LEXIS 126 (1845).

Section Has Reference Only to Estate of Intestate or to Where Widow Dissents. —

This section, by its terms, its history, and when considered with the other provisions of this Article, has reference only to the estate of an intestate or at most to an estate where the widow dissents from the will. Jones v. Callahan, 242 N.C. 566 , 89 S.E.2d 111, 1955 N.C. LEXIS 615 (1955).

§ 30-18. From what property allowance assigned.

Such allowance shall be made in money or other personal property of the estate of the deceased spouse.

History. 1868-9, c. 93, s. 9; Code, s. 2117; Rev., s. 3095; C.S., s. 4112; 1925, c. 92; 1961, c. 749, s. 4.

CASE NOTES

Agreement to Satisfy Allowance Proper. —

Trial court properly allowed an estate’s motion to satisfy the deficiency judgment awarded to the surviving spouse for her statutory allowance out of the surplus proceeds from the sale of real property because the parties expressly agreed that the estate would pay the deficiency judgment from the surplus sale proceeds; the law did not prohibit the creation and recognition of a private contractual claim to such proceeds where all other debts of the estate had been satisfied. In re Estate of Giddens, 270 N.C. App. 282, 841 S.E.2d 302, 2020 N.C. App. LEXIS 172 (2020).

Former Law. —

For cases construing section prior to the 1961 amendment, see Van Norden v. Prim, 3 N.C. 149 , 1797 N.C. LEXIS 55 (1797); Hunter v. Husted, 45 N.C. 97 , 1852 N.C. LEXIS 21 (1852); Irvin v. Hughes, 82 N.C. 210 , 1880 N.C. LEXIS 209 (1880); Denton v. Tyson, 118 N.C. 542 , 24 S.E. 116, 1896 N.C. LEXIS 90 (1896); Broadnax v. Broadnax, 160 N.C. 432 , 76 S.E. 216, 1912 N.C. LEXIS 185 (1912).

Part 2. Assigned by Magistrate or Clerk.

§ 30-19. Value of property ascertained.

The value of the personal property assigned to the surviving spouse and children shall be ascertained by a magistrate or the clerk of court of the county in which administration was granted or the will probated.

History. 1868-9, c. 93, s. 13; Code, s. 2121; Rev., s. 3097; C.S., s. 4114; 1961, c. 749, s. 5; 1971, c. 528, s. 22; 1989, c. 11, s. 1; 1997-310, s. 3.

§ 30-20. Procedure for assignment.

Upon the application of the surviving spouse, a child by the child’s guardian or next friend, or the personal representative of the deceased, the clerk of superior court of the county in which the deceased resided may assign the inquiry to a magistrate of the county. The clerk of court, or magistrate upon assignment, shall ascertain the person or persons entitled to an allowance according to the provisions of this Article, and determine the money or other personal property of the estate, and pay over to or assign to the surviving spouse and to the children, if any, so much thereof as they shall be entitled to as provided in this Article. Any deficiencies shall be made up from any of the personal property of the deceased, and if the personal property of the estate shall be insufficient to satisfy the allowance, the clerk of the superior court shall enter judgment against the personal representative for the amount of the deficiency, to be paid when a sufficiency of such assets shall come into the personal representative’s hands.

History. 1870-1, c. 263; Code, s. 2122; 1891, c. 13; 1899, c. 531; Rev., s. 3098; C.S., s. 4115; 1961, c. 749, s. 6; 1971, c. 528, s. 23; 1989, c. 11, s. 2; 1997-310, s. 3; 2011-344, s. 7; 2012-71, s. 2(b).

Effect of Amendments.

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “the child’s guardian” for “his guardian or next friend” in the first sentence, and substituted “the personal representative’s hands” for “his hands” in the last sentence.

Session Laws 2012-71, s. 2(b), effective June 26, 2012, added “or next friend” in the first sentence, and in the third sentence, substituted “the allowance” for “such allowance”, and “the deficiency” for “such deficiency”.

CASE NOTES

Assignment Does Not Preclude Increase of Allowance. —

The assignment of a year’s provision under this section does not serve to preclude the widow’s right to an increase thereof under G.S. 30-26 et seq. Mann v. Mann, 173 N.C. 20 , 91 S.E. 355, 1917 N.C. LEXIS 224 (1917).

Agreement to Satisfy Allowance Proper. —

Trial court properly allowed an estate’s motion to satisfy the deficiency judgment awarded to the surviving spouse for her statutory allowance out of the surplus proceeds from the sale of real property because the parties expressly agreed that the estate would pay the deficiency judgment from the surplus sale proceeds; the law did not prohibit the creation and recognition of a private contractual claim to such proceeds where all other debts of the estate had been satisfied. In re Estate of Giddens, 270 N.C. App. 282, 841 S.E.2d 302, 2020 N.C. App. LEXIS 172 (2020).

§ 30-21. Report of clerk or magistrate.

The clerk of court, or magistrate upon assignment, shall make and sign three lists of the money or other personal property assigned to each person, stating their quantity and value, and the deficiency to be paid by the personal representative. Where the allowance is to the surviving spouse, one of these lists shall be delivered to the surviving spouse. Where the allowance is to a child, one of these lists shall be delivered to the surviving parent with whom the child is living; or to the child’s guardian or next friend if the child is not living with the surviving parent; or to the child if the child is not living with the surviving parent and has no guardian or next friend. One list shall be delivered to the personal representative. One list shall be returned by the magistrate or clerk, within 20 days after the assignment, to the superior court of the county in which administration was granted or the will probated, and the clerk shall file and record the list, together with any judgment entered pursuant to G.S. 30-20 .

History. 1868-9, c. 93, s. 15; Code, s. 2123; Rev., s. 3099; C.S., s. 4116; 1961, c. 749, s. 7; 1971, c. 528, s. 24; 1989, c. 11, s. 3; 1997-310, s. 3; 2011-344, s. 7; 2012-71, s. 2(c).

Effect of Amendments.

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “delivered to the surviving spouse” for “delivered to him” in the second sentence, and twice deleted “or next friend” following “guardian” in the third sentence.

Session Laws 2012-71, s. 2(c), effective June 26, 2012, in the third sentence, added “or next friend” twice, and substituted “with the surviving” for “with said surviving”, and substituted “if the child” for “if said child”, and substituted “list” for “same” in the fifth sentence.

CASE NOTES

Filing of List Mandatory. —

The filing and recording of the list of articles (now money or other personal property) allotted to the widow, as her year’s support, as required by this section, is essential to its validity, and to the vesting in her of the property or debt allotted to the widow. Kiff v. Kiff, 95 N.C. 71 , 1886 N.C. LEXIS 207 (1886).

Reasonable Certainty Required. —

The allotment to the widow must be made with such reasonable certainty, in regard to the thing allotted, as to indicate what property was intended by the commissioners, otherwise the allotment will be void. Under this principle the item, “labor for 31/2 years, $173,” was held void. Kiff v. Kiff, 95 N.C. 71 , 1886 N.C. LEXIS 207 (1886).

§ 30-22. [Repealed]

Repealed by Session Laws 1971, c. 528, s. 25.

§ 30-23. Right of appeal.

The personal representative, or the surviving spouse, or child by a the child’s guardian or next friend, or any creditor, devisee, or heir of the deceased, may appeal from the finding of the magistrate or clerk of court to the superior court of the county, by filing a copy of the assignment and a notice of appeal within 10 days after the assignment, and the appeal shall be heard as provided in G.S. 1-301.2 , provided that the hearing on the appeal shall be at the next available session of superior court.

History. 1868-9, c. 93, s. 16; Code, s. 2124; 1897, c. 442; Rev., s. 3100; C.S., s. 4117; 1961, c. 749, s. 9; 1989, c. 11, s. 4; 1997-310, s. 3; 2011-284, s. 23; 2011-344, s. 7; 2012-71, s. 2(d).

Editor’s Note.

This section was amended by Session Laws 2011-284, s. 23, and Session Laws 2011-344, s. 7, in the coded bill drafting format provided by G.S. 120-20.1 . The word “a” preceding “guardian,” as added by Session Laws 2011-284, was not struck through by Session Laws 2011-344. The section has been set out in the form above at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2011-284, s. 23, effective June 24, 2011, substituted “a guardian” for “his guardian” and “devisee” for “legatee.”

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section to the extent that a detailed comparison is impracticable.

Session Laws 2012-71, s. 2(d), effective June 26, 2012, added “or next friend”.

CASE NOTES

Findings Supported by Evidence Not Reviewed. —

The findings of the judge in the special proceedings for the allotment of the year’s support will not be reviewed on appeal where there is evidence to support such findings. Drewry v. Raleigh Sav. Bank & Trust Co., 173 N.C. 664 , 92 S.E. 593, 1917 N.C. LEXIS 367 (1917).

Timeliness of Appeal. —

Devisee under a will did not file an appeal from the trial court’s approval of an assignment of a year’s allowance to the surviving spouse, and waited more than eight months before filing her motion to set aside the assignment of the year’s allowance to the surviving spouse; accordingly, the devisee failed to subsequently appeal within the required time under G.S. 30-23 , and a notice requirement was not imposed with respect to the statutory right to the year’s allowance for the surviving spouse. In re Estate of Archibald, 183 N.C. App. 274, 644 S.E.2d 264, 2007 N.C. App. LEXIS 1046 (2007).

Misdating of Clerk’s Signature. —

Assistant clerk’s error in misdating her signature on the assignment in no way deprived respondents of their right to appeal within 10 days of its actual entry. In re Estate of Meetze, 272 N.C. App. 475, 847 S.E.2d 220, 2020 N.C. App. LEXIS 539 (2020).

§ 30-24. [Repealed]

Repealed by Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

History. 1868-9, c. 93, s. 17; Code, s. 2125; Rev., s. 3101; C.S., s. 4118; 1989, c. 11, s. 5; 1997-310, s. 3; repealed by Session Laws 2011-344, s. 7, effective January 1, 2012.

Editor’s Note.

Former G.S. 30-24 pertained to hearing on appeal.

§ 30-25. Personal representative entitled to credit.

Upon the settlement of the accounts of the personal representative, the personal representative shall be credited with the articles assigned, and the value of the deficiency assessed as aforesaid, if the same shall have been paid, unless the allowance be impeached for fraud or gross negligence in him.

History. 1868-9, c. 93, s. 18; Code, s. 2126; Rev., s. 3102; C.S., s. 4119; 1997, c. 310, s. 3; 2011-344, s. 7.

Effect of Amendments.

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “the personal representative shall” for “he shall.”

§ 30-26. [Repealed]

Repealed by Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

History. 1868-9, c. 93, s. 19; Code, s. 2127; Rev., s. 3103; C.S., s. 4120; 1961, c. 749, s. 10; 1981, c. 413, s. 3; 1995, c. 262, s. 6; 1995 (Reg. Sess., 1996), c. 742, s. 17; 1997-310, s. 3; 2009-183, s. 2; repealed by Session 2011-344, s. 7, effective January 1, 2012.

Editor’s Note.

Former G.S. 30-26 pertained to when allowance is in full.

Part 3. Assigned in Superior Court.

§ 30-27. Surviving spouse or child may apply to superior court.

In addition to any support otherwise assigned to the surviving spouse or child under this Article, without application to the personal representative, the surviving spouse, or the child through the child’s guardian or next friend may, after the date specified in the general notice to creditors as provided for in G.S. 28A-14-1(a), and within one year after the decedent’s death, apply to the superior court of the county in which administration was granted or the will probated to have a year’s support assigned at an amount other than prescribed in G.S. 30-15 and G.S. 30-17 .

History. 1868-9, c. 93, s. 20; Code, s. 2128; Rev., s. 3104; C.S., s. 4121; 1961, c. 749, s. 11; 2011-344, s. 7; 2012-71, s. 2(e).

Effect of Amendments.

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section to the extent that a detailed comparison is impracticable.

Session Laws 2012-71, s. 2(e), effective June 26, 2012, added “otherwise,” substituted “under this Article” for “as above prescribed,” and added “or next friend.”

Legal Periodicals.

For survey of 1978 property law, see 57 N.C.L. Rev. 1103 (1979).

CASE NOTES

Approval of Allowance Less Than Maximum under G.S. 30-31 . —

Where the superior court found a sum which a widow has agreed to accept to be reasonable and proper, though less than her maximum allowance would have been if calculated under G.S. 30-31 , this section gives the court the jurisdiction to make the allowance agreed upon. Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454 , 67 S.E.2d 651, 1951 N.C. LEXIS 505 (1951).

Irrelevant Allegations in Answer. —

Upon petition for allotment of a widow’s year’s allowance, allegations in the answer to the effect that the widow did not need an allotment for her support, that deceased’s will evidenced a desire that the widow should receive no part of the estate, and that defendants were the aged and infirm parents of deceased dependent upon the estate left them by the will, are irrelevant to the issues and could not be shown in evidence, and were properly stricken upon motion, since even the reading of the pleadings would be highly prejudicial to petitioner. Edwards v. Edwards, 230 N.C. 176 , 52 S.E.2d 281, 1949 N.C. LEXIS 586 (1949).

Deduction of Year’s Allowance from Widow’s Distributive Share Proper. —

G.S. 30-27 merely outlined an alternative procedural method to pursue larger allowances in superior court and should, in all other ways, have been treated in like manner with allowances administered pursuant to G.S. 30-15 ; there was no error in a trial court’s order charging the year’s allowance paid to the decedent’s widow against the widow’s distributive share. Bryant v. Bowers, 182 N.C. App. 338, 641 S.E.2d 855, 2007 N.C. App. LEXIS 583 (2007).

§ 30-28. Nature of proceeding; parties.

The application shall be by petition in a special proceeding before the clerk of superior court. The personal representative of the deceased, if there is one other than the petitioner, all known creditors, and all known heirs of the deceased, if the deceased is intestate, and devisees of the deceased, if the deceased is testate, shall be made parties to the special proceeding. If the personal representative of the deceased is aware of a creditor, heir, or devisee who should have been made a respondent but was not, then the personal representative shall file a motion to add the creditor, heir, or devisee as a necessary party, and the court shall order such other party to appear in the proceeding.

devisee

History. 1868-9, c. 93, s. 21; Code, s. 2129; Rev., s. 3105; C.S., s. 4122; 2011-284, s. 24; 2011-344, s. 7.

Editor’s Note.

This section was amended by Session Laws 2011-284, s. 24, and Session Laws 2011-344, s. 7, in the coded bill drafting format provided by G.S. 120-20.1 . The word “devisee,” as added by Session Laws 2011-284, was not struck through by Session Laws 2011-344. The section has been set out in the form above at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2011-284, s. 24, effective June 24, 2011, substituted “devisee” for “legatee.”

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section to the extent that a detailed comparison is impracticable.

§ 30-29. What petition must show.

In the petition the petitioner shall set forth, besides the facts entitling petitioner to a year’s support and the value of the support claimed, the further facts that the personal estate of which the decedent died possessed exceeded sixty thousand dollars ($60,000) and also whether or not an allowance has been made to petitioner and the nature and value thereof.

History. 1868-9, c. 93, s. 22; Code, s. 2130; Rev., s. 3106; C.S., s. 4123; 1961, c. 749, s. 12; 1981, c. 413, s. 4; 1995, c. 262, s. 7; 2009-183, s. 3; 2011-344, s. 7; 2013-81, s. 2; 2019-243, s. 24.

Effect of Amendments.

Session Laws 2009-183, s. 3, effective January 1, 2010, and applicable to estates of individuals dying on or after that date, substituted “twenty thousand dollars ($20,000)” for “ten thousand dollars ($10,000),” and made a gender neutral change.

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, substituted “petition” for “complaint” in the section catchline; and rewrote the section to the extent that a detailed comparison is impracticable.

Session Laws 2019-243, s. 24, effective November 6, 2019, substituted “sixty thousand dollars ($60,000)” for “thirty thousand dollars ($30,000).”

§ 30-30. Judgment.

The clerk of superior court shall hear the matter and determine whether the petitioner is entitled to some or all of the relief sought and, if the clerk determines that the petitioner is so entitled, the clerk shall determine the money or other personal property of the estate and assign to the petitioner a sufficiency thereof for petitioner’s support for one year from the decedent’s death. Any deficiency shall be made up from any of the personal property of the deceased, and if the personal property of the estate shall be insufficient for such support, the clerk of superior court shall enter judgment against the personal representative for the amount of such deficiency, to be paid when a sufficiency of such assets shall come into the personal representative’s hands. Any judgment so rendered shall have the same priority over other debts and claims against the estate as an allowance assigned pursuant to G.S. 30-15 or G.S. 30-17 .

History. 1868-9, c. 93, s. 23; Code, s. 2131; Rev., s. 3107; C.S., s. 4124; 1961, c. 749, s. 13; 1971, c. 528, s. 26; 2011-344, s. 7; 2012-194, s. 14.

Effect of Amendments.

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, rewrote the section to the extent that a detailed comparison is impracticable.

Session Laws 2012-194, s. 14, effective July 17, 2012, deleted “and order for commissioners” at the end of the section heading.

§ 30-31. Amount of allowance.

The clerk of superior court may assign to the petitioner a value sufficient for the support of petitioner according to the estate and condition of the decedent and without regard to the limitations set forth in this Chapter; but the value allowed shall be fixed with due consideration for other persons entitled to allowances for year’s support from the decedent’s estate; and the total value of all allowances shall not in any case exceed the one half of the average annual net income of the deceased for three years next preceding the deceased’s death. Attorneys’ fees and costs awarded the petitioner under G.S. 6-21 shall be paid as an administrative expense of the estate.

History. 1868-9, c. 93, s. 24; Code, s. 2132; Rev., s. 3108; C.S., s. 4125; 1971, c. 528, s. 27; 2011-344, s. 7; 2012-18, s. 3.10; 2013-91, s. 1(e).

Effect of Amendments.

Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, deleted “Duty of commissioners” from the beginning of the section catchline; and rewrote the section to the extent that a detailed comparison is impracticable.

Session Laws 2012-18, s. 3.10, effective June 11, 2012, deleted the former last sentence, which read: “This report shall be returned by the magistrate to the courts.”

Session Laws 2013-91, s. 1(e), effective June 12, 2013, added the last sentence.

Legal Periodicals.

For survey of 1978 property law, see 57 N.C.L. Rev. 1103 (1979).

CASE NOTES

Meaning of Annual Net Income. —

The provision of this section that the allowance shall not exceed “the one half of the [average] annual net income of the deceased for three years next preceding his death” means the one half of one year’s net income, determined by the average annual income for the three years next preceding the decease, and not one half of the sum total of the annual net income for the three-year period. Holland v. Henson, 189 N.C. 742 , 128 S.E. 145, 1925 N.C. LEXIS 393 (1925).

“Net income” in this section is not “adjusted gross income,” but rather is to be computed after deducting all federal and state income taxes attributable to the income received by the decedent during the three years preceding his death. Pritchard v. First-Citizens Bank & Trust Co., 38 N.C. App. 489, 248 S.E.2d 467, 1978 N.C. App. LEXIS 2224 (1978).

Net income in this section means “take home pay” or “after-tax income,” because this is the only income that is “netted,” that is truly available for family support purposes in a real sense, as any employee whose earnings are subject to withholding can testify. Pritchard v. First-Citizens Bank & Trust Co., 38 N.C. App. 489, 248 S.E.2d 467, 1978 N.C. App. LEXIS 2224 (1978).

Sufficient Allowance to Maintain Standard of Living. —

This section is designed to permit the allowance to the surviving spouse of a solvent decedent of an amount sufficient to maintain for a period that standard of living to which he or she had been accustomed, thereby avoiding the hardship which an immediate and drastic reduction in income would entail. Pritchard v. First-Citizens Bank & Trust Co., 38 N.C. App. 489, 248 S.E.2d 467, 1978 N.C. App. LEXIS 2224 (1978).

The purpose of the larger allowance authorized by this Part appears to be to provide the surviving spouse of a solvent decedent with a level of support commensurate with the support which he or she would have had from the deceased spouse during the first year after the spouse’s death had the death not occurred. Pritchard v. First-Citizens Bank & Trust Co., 38 N.C. App. 489, 248 S.E.2d 467, 1978 N.C. App. LEXIS 2224 (1978).

The legislature by this section intended the widow to receive an allotment not exceeding one half of the income which would probably have been actually received by and available to her deceased husband for the support of his family, had he lived an additional year. Pritchard v. First-Citizens Bank & Trust Co., 38 N.C. App. 489, 248 S.E.2d 467, 1978 N.C. App. LEXIS 2224 (1978).

Allowance May Be Less Than Prescribed Maximum. —

The formula in this section serves only to calculate the maximum allowance which may be assigned and does not represent an amount which must be assigned. The only requirement laid down by this section is that the allowance be, within the maximum limit specified, “a value sufficient for the support of plaintiff according to the estate and condition of the decedent.” In some cases, this amount could be considerably less than the statutorily prescribed maximum. Pritchard v. First-Citizens Bank & Trust Co., 38 N.C. App. 489, 248 S.E.2d 467, 1978 N.C. App. LEXIS 2224 (1978).

Approval of Allowance Less Than Maximum. —

Where the superior court found a sum which a widow has agreed to accept to be reasonable and proper, though less than her maximum allowance would have been if calculated under this section, G.S. 30-27 gives the court the jurisdiction to make the allowance agreed upon. Wachovia Bank & Trust Co. v. Waddell, 234 N.C. 454 , 67 S.E.2d 651, 1951 N.C. LEXIS 505 (1951).

Allowance Sustained Where Discretion Not Abused. —

Where the estate of the deceased husband is large and in good condition, and he received a net annual income for three years prior to his death of over $38,500, an allowance of $12,500 for a year’s support to his widow with minor son, less the value of the household furniture, is not an abuse of the superior court’s discretion which the Supreme Court will review. Drewry v. Raleigh Sav. Bank & Trust Co., 173 N.C. 664 , 92 S.E. 593, 1917 N.C. LEXIS 367 (1917).

Agreement to Satisfy Allowance Proper. —

Trial court properly allowed an estate’s motion to satisfy the deficiency judgment awarded to the surviving spouse for her statutory allowance out of the surplus proceeds from the sale of real property because the parties expressly agreed that the estate would pay the deficiency judgment from the surplus sale proceeds; the law did not prohibit the creation and recognition of a private contractual claim to such proceeds where all other debts of the estate had been satisfied. In re Estate of Giddens, 270 N.C. App. 282, 841 S.E.2d 302, 2020 N.C. App. LEXIS 172 (2020).

§ 30-31.1. Service of judgment and appeal.

The petitioner shall serve the clerk’s judgment on all other parties. The judgment also shall be filed in the estate file of the deceased. Any aggrieved party may appeal the judgment in accordance with G.S. 1-301.2 .

History. 2011-344, s. 7.

§ 30-31.2. Execution.

If the clerk’s judgment is not appealed as provided in G.S. 1-301.2 , execution shall issue to enforce the judgment as in like cases under Article 28 of Chapter 1 of the General Statutes.

History. 2011-344, s. 7.

§ 30-32. [Repealed]

Repealed by Session Laws 2012-194, s. 40, effective July 17, 2012.

History. 1868-9, c. 93, s. 25; Code, s. 2133; Rev., s. 3109; C.S., s. 4126; 1947, c. 484, s. 1; 2011-284, s. 25; 2011-344, s. 7; repealed by 2012-194, s. 40 effective July 17, 2012.

Editor’s Note.

This section was amended by Session Laws 2011-284, s. 25, effective June 24, 2011, and Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the coded bill drafting format provided by G.S. 120-20.1 . Session Laws 2011-344, s. 7, which repealed this section by striking through the text, did not account for the additions to the section made by Session Laws 2011-284. Session Laws 2012-194, s. 40, effective June 17, 2012, repealed Session Laws 2011-184, s. 25, and the section has now been set out as repealed by Session Laws 2011-344, s. 7.

Former G.S. 30-32 pertained to exceptions to the report.

§ 30-33. [Repealed]

Repealed by Session Laws 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

History. 1868-9, c. 93, s. 26; Code, s. 2134; Rev., s. 3110; C.S., s. 4127; repealed by 2011-344, s. 7, effective January 1, 2012, and applicable to estates of decedents dying on or after that date.

Editor’s Note.

Former G.S. 30-33 pertained to confirmation of report.