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RONB-ESQ, Lawyer
Category: Family Law
Satisfied Customers: 357
Experience:  Right of Way Manager at Access Midstream Partners, LP
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Within the state of North Carolina, does a Will trump state

Customer Question

Within the state of North Carolina, does a Will trump state probate entitlements? I am technically still marries (in that I have not obtained a divorce), but have been separated from my spouse for 3 years. There is no intent on my part or that of my former spouse to reconcile. I want to establish a will that will insure she isn't able to make a claim against my estate based upon statutory entitlement.
Submitted: 1 year ago.
Category: Family Law
Expert:  RONB-ESQ replied 1 year ago.

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I want to review a couple things in North Carolina and I will be right back.

Expert:  RONB-ESQ replied 1 year ago.

Sorry it took me longer than expected to find this. I think this answers your question. So long as your married whether you have a will or not your spouse is entitled to the spousal share. The only way you can avoid this is to divorce her.

Here is the relevant statute language:

§ 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 thirty thousand dollars ($30,000) for the surviving spouse's support for one year after the death of the deceased spouse. 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. (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.)

Expert:  RONB-ESQ replied 1 year ago.

Just so you know a "testator" is one who has a Will and someone that dies without a will is deemed intestate.

I hope this answers your question. I know it may not be the answer you wanted, but I am obligated to provide you accurate information so you can make an informed decision. Thank you in advance for leaving me positive feedback (good-excellent) as that is the only way I am compensated for the time I spend answering questions. You are welcome to reply here even after rating me with follow up questions or clarifications related to your question for free.



Expert:  RONB-ESQ replied 1 year ago.

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