Should we Get Married?
A Legal Moment

Should We Get Married?

   The ultimate question of whether to marry is far beyond the scope of a law-related article, but there are a number of legal implications pertaining to one's financial matters that arise upon the declaration of "I do," some of which are the subject of this month's A Legal Moment.

Rights of a Surviving Spouse to Property of a Deceased Spouse

   Under North Carolina law, upon a spouse’s death the surviving spouse is entitled to certain property belonging to the deceased spouse (unless rights have been forfeited, such as for “abandonment.”)
Spousal Year’s Allowance
   First, the surviving spouse may apply for a “Spousal Year’s Allowance” — currently $30,000 — from the deceased spouse’s personal property.  This allowance is a one-time allowance, the petition for which must be timely filed, and it has priority over claims of the deceased spouse’s creditors.  If the deceased spouse dies “testate” (with a Will), the allowance is charged against the share the surviving spouse receives under the Will; if the deceased spouse dies “intestate” (without a Will), the allowance is added to the surviving spouse’s intestate share.
Intestate Share
   If the deceased spouse had no valid Will, the North Carolina intestacy statutes dictate the inheritance of the surviving spouse as to property owned by the deceased spouse and not governed by beneficiary designation or right-of-survivorship feature.  This calculation hinges upon determination of the deceased spouse’s heirs, as well as a determination of the amount and type of assets owned by the deceased spouse.  If the deceased spouse had no children, but was survived by at least one parent, typically some of the deceased spouse’s property passes to the surviving spouse and some to the parent(s); if the deceased spouse had children, typically some property passes to the surviving spouse and some to the children.  (However, some smaller estates with no real estate may pass entirely to the surviving spouse.)
Elective Share
   North Carolina law allows a surviving spouse to claim a certain percentage of the total assets of a deceased spouse, if the surviving spouse is domiciled in North Carolina and if proper and timely petition is made — regardless of what the deceased spouse’s Will says.  The surviving spouse may petition for an “Elective Share” of the deceased spouse’s assets, such share being a percentage based on the length of the marriage.  These percentages range from 15% (marriage of less than 5 years), up to 50% (marriage of 15 years or longer), and the percentage is applied to the “Total Net Assets” of the deceased spouse, which includes assets the deceased spouse received by gift or inheritance, as well as assets with beneficiary designations or right-of-survivorship.  The surviving spouse may petition for the elective share whether or not there is a Will.  [Note, too, that North Carolina law provides a surviving spouse various options regarding the election of a life estate in real estate, in lieu of an intestate or elective share.]
   There can be other rights to property that arise as well.  For example, certain retirement plans require transfer to the surviving spouse unless such right has been properly waived.
Rights of a Spouse to Property Upon Divorce
   When spouses divorce in North Carolina, division of property is based on a set of rules called “equitable distribution.”  The couple’s assets are divided “equitably” in light of their circumstances, with attention paid to what is “marital property” of the couple and what is “separate property” of each spouse.  In general, separate property includes property owned prior to the marriage or acquired during the marriage by gift or inheritance which is continuously maintained under separate ownership; marital property is generally everything else.  Actual division is situation-specific and no attempt is made here to provide guidelines.  But note that while inherited property maintained as separate property may be protected from a spouse in the case of divorce, such property is usually subject to the elective share statute discussed above.
Premarital Agreements, Post-Marital Agreements, and Other Estate Planning
   A premarital or post-marital agreement can alter the above-described spousal rights, if properly drafted and executed.  It is important that each party have the full information needed in order to enter into such agreement, and that the agreement is entered without coercion.  Separate, independent legal representation of each party is strongly recommended.
   There are some other estate planning strategies that can alter the effects of some of the above spousal rights.  For example, the elective share claim described above can be satisfied with a properly drafted “spousal trust” which provides that assets be made available for the needs of a surviving spouse, but which does not give the assets outright to the spouse.  Then, at the surviving spouse’s death, the remaining assets in the spousal trust would pass to beneficiaries named in the trust document.  Strict adherence to the rules of a “spousal trust” is required for this strategy to be effective.
In Sickness and in Health:  The Doctrine of Necessaries
   One financial implication of marriage that cannot be altered by a premarital or post-marital agreement is North Carolina’s “Doctrine of Necessaries,” which creates in each spouse a duty to support and provide for the other spouse.  The doctrine arises most often with respect to medical and long-term care expenses, whereby providers (often hospitals or nursing homes) seek to hold one spouse liable for the unpaid bills of the other spouse.  Under this doctrine, assets of one spouse, including inherited assets, can be sought to pay “necessaries” of the other spouse.  Health insurance and long-term care insurance can help in avoiding the financial risk associated with medical and long-term care expenses.
I Do!
   When you say “I do,” you alter your financial responsibilities under the applicable laws of your State.  It is prudent to be aware of such laws — and you may wish to consult legal counsel for a full briefing and to take steps to manage any risks about which you have concerns.  In any event, this is an important time to review estate planning documents and beneficiary designations — as well as how property is “titled” (whose names are listed and, if there are joint owners, what happens when a joint owner dies) — and to make any appropriate changes. 
Many of the issues discussed above are complex and require strict adherence to statutory requirements, and this article is intended only as a cursory review of such issues.  Legal counsel should be sought for reliance on any of the issues presented.  This is not an exhaustive discussion of the issues presented, nor is it a complete discussion of all issues related to the financial implications of marriage.


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Gay Vinson is an attorney at Marshall, Roth & Gregory, PC. Her practice is concentrated in trust and estate planning and administration.
  To receive more information on this topic or to suggest topics for future editions of "A Legal Moment," feel free to contact Gay by email ( or telephone (828.281.2100). 

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You may not rely on this content as legal advice for any specific situation, but should instead contact an attorney for specific advice.
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