An Ode to the Surviving Spouse

Losing any loved one is difficult, but losing a spouse adds another dimension of not only grief, but anxiety, fear and confusion about the future. A marriage is a team effort – duties are delegated with respect to finances, home maintenance, social graces, and the many other elements of domestic life. And so, when one spouse dies, in addition to the grief felt, the survivor is often overwhelmed by taking on new duties which were delegated to their partner prior to their death.

There are, of course, many family dynamics and there can be many variations and complexities, but in a lot of cases, the surviving spouse is in a position to receive all of the assets of the deceased spouse. Additionally, and fortunately for the surviving spouse, there are many legal nuances and mechanisms which make many estates where there is a surviving spouse easier to administer than a typical estate. Here, I will discuss a few of those nuances and mechanisms.

With respect to the couple’s homeplace and any other real estate they own, in many cases they own or acquire the real estate together as a married couple and, therefore, have an ownership called tenants-by-the-entirety. Tenants-by-the-entirety has built-in rights of survivorship which means that when one spouse passes away, the surviving spouse owns the homeplace or other real estate immediately, solely and without any action required to transfer title. This can often be confusing for the surviving spouse and third parties, because there will not be a new deed or other instrument which shows this change in ownership. But rest assured, the original deed to the spouses, a death certificate and the operation of North Carolina law are the unequivocal and only necessary elements of the title change. There can, however, be cases where spouses do not own real estate as tenants-by-the entirety such as when one spouse inherited real estate and never created a tenancy-by-the-entirety by adding their spouse, owned property prior to marriage or simply took title in their sole name or opted out of tenants-by-the-entirety through a clear indication in the vesting deed to the spouses. In these cases, the administration of the estate of deceased spouses becomes slightly more cumbersome.

With respect to personal property like bank accounts, cars, boats and the like, there are several factors at play. First, with bank accounts, many spouses have jointly owned accounts. 99% of joint accounts are owned jointly with rights of survivorship and, therefore, the surviving account owner can continue to operate the account as their own. Additionally, even when the deceased spouse has an account in their sole name such as an individual retirement account, they have often named their spouse as the beneficiary which allows the surviving spouse to quickly access or transfer the account by submitting a death certificate and completing some forms. However, cars, boats, trailers and other titled personal property often do not have rights of survivorship and the surviving spouse may need to take action to effectuate a title change if the property was in both names or in the sole name of the deceased spouse.

Fortunately, many of these miscellaneous items can be handled via the North Carolina spousal allowance, aka the year’s allowance (N.C.G.S. § 30-15 et. seq.) which provides that every surviving spouse shall be entitled, out of the personal property of the deceased spouse, an allowance of the value of $60,000 for the surviving spouse’s support. Accordingly, if the surviving spouse files for such allowance within one year after the death of their spouse, they essentially open up a tab where they can receive up to $60,000 of the deceased spouse’s personal property in addition to property which may have passed by the other means discussed here such as survivorship or beneficiary designation. The year’s allowance is often used to transfer title to cars, boats and trailers but can be used for any personal property which does not otherwise pass to the surviving spouse. Filing for the year’s allowance is quick and straight-forward and does not require probate of the Will or other lengthy court procedures. Once the property is listed on the application and the document is certified by the Clerk it can be presented at the DMV to transfer the items listed. If additional items are discovered, they can later be added by submitting an additional form.

There are also additional procedures available to surviving spouses as alternatives to a full administration of probate, but all cases are different, and the surviving spouse should sit down with an attorney to review the couple’s complete asset and debt overview in order to take the most efficient and appropriate steps. But as a general matter, there are many mechanisms which make estate administration for the surviving spouse easier than a typical estate administration and that’s a great thing for the surviving spouse. The loss of a spouse is a great time to speak with professionals about the new roles you will be undertaking and to begin surrounding yourself with competent counsel as you transition to a new phase of your life.

If you are a surviving spouse in need of counsel, please call our office to speak with an estate administration attorney.

Estate Planning & Admin