The loss of a spouse is a devastating event that has long-term repercussions, both emotional and financial. A surviving spouse is often required to provide immediate attention to matters related to the estate administration (much of which might be unfamiliar to them) even as they process and adjust to their loss and grief. A surviving spouse may not be able to concentrate on the probate process on their own. If the decedent had named their spouse as executor, the surviving spouse may opt to retain a probate attorney to assist with many of the estate administration duties. In some cases, an executor might choose to renounce and nominate a lawyer to settle the estate entirely themselves. If there was no will or an executor was not named, North Carolina law provides that an individual can petition the court to take on the role of personal representative, or the court will appoint one.
When a spouse dies, the surviving spouse should address three estate administration items in the first weeks and months following the death:
- Documents. Whether the survivor will serve as executor or someone else will serve in that role, the survivor can help to organize and expedite the estate administration by gathering and organizing property titles, retirement account statements, marriage certificate, birth certificate(s) (if the decedent had children), insurance policies, will and/or trust documents (if available), and copies of the death certificate. The executor or personal representative, which may or may not be the surviving spouse, will need to review these items to determine the proper procedure for administering the estate and/or trust. Depending on how beneficiary designations were completed, the retirement assets may be subject to probate. Insurance benefits may be due to the surviving spouse and any children, in which case the beneficiaries will need to contact the insurance company to determine how to submit a claim.
- Review spousal benefits. Life, health, and liability insurance policies should be addressed. The decedent’s employer may have additional details about potential benefits a surviving spouse is entitled to. If named as primary beneficiary of retirement accounts, a surviving spouse typically has the option to implement a spousal rollover.
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Elections: portability and elective share. The surviving spouse might wish to opt for portability of the deceased spouse’s unused estate tax exemption amount, if available. Portability allows a surviving spouse to use the unused portion of their deceased spouse’s estate tax exemption, which could allow a surviving spouse to leave over $10 million in assets to their beneficiaries free of estate tax. The executor must make the election by filing an estate tax return for the deceased spouse. Notifying the executor in a timely manner that one wishes to make this election is imperative, as the return must be filed within nine months of death (although a six month extension may be requested).
Separately, North Carolina law provides that surviving spouses may take an elective share of the decedent’s estate in the event the bequeathed assets are valued under the statutory minimum. In 2013, the North Carolina elective share law was revised with a sliding scale determining the percentage of the estate to which the survivor is entitled, proportionate to the length of the marriage. The spouse must file a claim for elective share within six months of the issuance of letters testamentary (where the decedent left a will) or letters of administration (where the decedent died intestate), and must not have waived the right to an elective share via a marital agreement or otherwise.
Learn more about probate in North Carolina.
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