The death of a loved one is a difficult time—a spouse’s death is especially difficult. What can make an already difficult time especially challenging is an uncertainty about your own livelihood and circumstances now that your spouse has passed. If a spouse dies without a will, the survivor may find themselves with several questions: Do I get everything? If not, what do I get? Do I get anything at all? The North Carolina Legislature has fortunately thought of this situation and codified what the potential outcomes could be. While there are many ways for this scenario to play out, there are several especially common situations to be aware of.
How is Real Property Split?
There are a few things to consider in determining how real property will be split. Are there any children of the decedent? If so, how many? Are any children pre-deceased but have children of their own that are currently living? How about parents? Different answers to these questions will result in different outcomes.
- Only one surviving child or lineal descendant of the child if the child pre-deceases. If the spouse only has one surviving child who is either still living, or the child is no longer living but has children of their own, then a surviving spouse has a one-half undivided interest in the real property.
- Two or more surviving children, or any lineal descendants of two or more deceased children. In this situation, a spouse is entitled to a one-third undivided interest in the real property.
- No surviving children or lineal descendants, but at least one surviving parent. A surviving spouse is entitled to a one-half undivided interest if the decedent has no surviving children, or pre-deceased children with lineal descendants, but has a surviving parent.
- All real property goes to the surviving spouse if no children or children’s descendants.
Like with real property, multiple factors will go into consideration in determining how much a surviving spouse will get in the absence of a will. This time, however, the value of the personal property comes into play.
- The decedent has surviving children or those children’s descendants, but the net personal property value does not exceed $60,000. No matter how many living children, or those children’s descendants, the decedent may have, a surviving spouse will get the entirety up to that $60,000 mark.
- One surviving child or lineal descendant of only one deceased child, and the net personal property value exceeds $60,000. In this case, a surviving spouse will get the first $60,000 and then one-half of everything that comes after. As an example, if the value is $80,000, then the surviving spouse will get the first $60,000 and then the remaining half—$10,000 of the remaining $20,000.
- Two or more surviving children or any descendant of one or more deceased children, or by lineal descendants of two or more deceased children, and the net personal property value exceeds $60,000. If there is more than one child and/or lineal descendant in the picture, then the surviving spouse will get the first $60,000 and one-third of the everything that comes after the initial $60,000.
- No surviving children or lineal descendants, but at least one parent of the decedent survives. This breaks down into two scenarios: The first scenario involves the personal property value being less than $100,000—the surviving spouse gets everything; in the second scenario, in which the value exceeds $100,000, the surviving spouse gets the first $100,000 and then one-half of everything that remains after that first $100,000.
- Lastly, absent any surviving children, descendants of children, or parents, the surviving spouse gets all personal property.
There are other considerations that may come into play, such as when an equitable distribution of property has been awarded to a surviving spouse after the death of the decedent, but the above-listed considerations provide a breakdown of just how much a surviving spouse is entitled to following the death of their spouse when the decedent passes without a will.
It can be challenging to value real property and personal property. It can also be outright daunting to administer an estate of a loved one who passes without a will, not to mention the emotional aspect that comes alongside the death of a spouse. While the process may be difficult to deal with emotionally, an attorney that is experienced in estate administration can handle the technical and procedural side and ease some of the burden associated with the loss of a spouse to ensure that the survivor gets what they are entitled to.
King Law Offices is a full-service estate planning law firm with an outstanding team of professionals who work diligently, creatively, and compassionately on behalf of our clients each day. Contact King Law and let us help you at 888-748-KING (5464) or by filling out our consultation form. We have offices located across western North Carolina and upstate South Carolina. We are here to serve you and to guide you as we navigate this journey together.