FILED SENATE
Mar 7, 2023
GENERAL ASSEMBLY OF NORTH CAROLINA
S.B. 218
SESSION 2023 PRINCIPAL CLERK
S D
SENATE BILL DRS45091-MQ-61
Short Title: Estates & Trusts Changes. (Public)
Sponsors: Senators Galey, Daniel, and Sawrey (Primary Sponsors).
Referred to:
1 A BILL TO BE ENTITLED
2 AN ACT TO UPDATE AND REORGANIZE THE GENERAL STATUTES RELATING TO
3 SPOUSAL AND CHILD'S ALLOWANCE IN ESTATES AND TO AMEND THE
4 GENERAL STATUTES TO TREAT WILLS AND REVOCABLE TRUSTS ALIKE IN
5 CONSTRUCTION, INTERPRETATION, AND ADMINISTRATION WHEN A
6 MARRIAGE IS DISSOLVED BY ABSOLUTE DIVORCE OR ANNULMENT AFTER
7 EXECUTION OF THE WILL OR REVOCABLE TRUST, AS RECOMMENDED BY THE
8 NORTH CAROLINA BAR ASSOCIATION.
9 The General Assembly of North Carolina enacts:
10
11 PART I. CHANGES TO YEARLY ALLOWANCE IN ESTATES
12 SECTION 1.1. The following General Statutes are repealed:
13 (1) G.S. 30-16.
14 (2) G.S. 30-21.
15 (3) G.S. 30-23.
16 (4) G.S. 30-25.
17 (5) G.S. 30-28.
18 (6) G.S. 30-29.
19 (7) G.S. 30-31.1.
20 (8) G.S. 30-31.2.
21 SECTION 1.2. Article 4 of Chapter 30 of the General Statutes, as amended by
22 Section 1.1 of this act, reads as rewritten:
23 "Article 4.
24 "Year's Allowance.
25 "Part 1. Nature of Allowance.
26 "§ 30-15. When spouse entitled to allowance.
27 (a) Every surviving spouse of an intestate or of a testator, decedent, whether or not the
28 surviving spouse has petitioned for an elective share, shall, unless the surviving spouse has
29 forfeited the surviving spouse's right thereto, as provided by law, shall be entitled, out of the
30 personal property of the deceased spouse, entitled to receive an allowance of having the value of
31 sixty thousand dollars ($60,000) for the surviving spouse's support for one year after the death
32 of the deceased spouse.spouse unless the spouse is barred from seeking an allowance under
33 G.S. 31A-1 or another applicable law. The spouse's allowance shall be in addition to the spouse's
34 share of the decedent's estate if the decedent died intestate but shall be charged against the
35 spouse's share of the decedent's estate if the decedent died testate.
*DRS45091-MQ-61*
 General Assembly Of North Carolina Session 2023
1 (b) The right of a surviving spouse to file a claim for an allowance must be exercised
2 during the lifetime of the surviving spouse by (i) the surviving spouse, (ii) the surviving spouse's
3 agent under a durable power of attorney, or (iii), with approval of the court, by the guardian of
4 the surviving spouse's estate or general guardian. A claim for an allowance must be made by
5 filing a verified petition with the clerk of court of the county in which venue would be proper
6 under G.S. 28A-3-1. There is no time limitation on bringing a claim for an allowance except that,
7 if a personal representative has been appointed for the decedent's estate, the claim must be made
8 within six months after the issuance of letters testamentary or letters of administration. In
9 addition, if a personal representative has been appointed for the decedent's estate, a copy of the
10 verified petition must be personally delivered or sent by first-class mail by the petitioner to the
11 personal representative.
12 (c) If the surviving spouse dies after the petition is filed but before the claim for an
13 allowance has been fully satisfied, any deficiency judgment existing at the time of the surviving
14 spouse's death shall not expire.
15 (d) The surviving spouse may claim the allowance if, at the death of the decedent, either
16 the decedent or the surviving spouse was a resident of this State. Such spouse's allowance shall
17 be exempt from any lien, lien by judgment or execution, acquired execution against the property
18 of the deceased spouse, and shall, in cases of testacy, be charged against the share of the surviving
19 spouse.decedent or any other claim made against or owed by the decedent's estate. The spouse's
20 allowance takes priority over any child's allowance under G.S. 30-17.
21 …
22 "§ 30-17. When children entitled to an allowance.
23 (a) Whenever any parent dies survived by any Every child of a decedent who is under the
24 age of 18 years, years at the time of the decedent's death, including an adopted child or a child
25 with whom the widow may be pregnant at the death of her husband, or a child who is less than
26 22 years of age and is a full-time student in any educational institution, or a child under 21 years
27 of age who has been declared mentally incompetent, or a child under 21 years of age who is
28 totally disabled, or any other person in utero, and every child who is under the age of 18 years
29 residing with the deceased parent at the time of death to at the time of the decedent's death with
30 whom the deceased parent or the surviving parent decedent stood in loco parentis, every such
31 child parentis at the time of death, shall be entitled to receive an allowance having a value of five
32 thousand dollars ($5,000) for the child's support for the one year next ensuing after the death of
33 the parent. decedent. The allowance shall be in addition to the child's share of the deceased
34 parent's decedent's estate regardless of whether the decedent died testate or intestate.
35 (b) The right of a child to file a claim for an allowance must be exercised during the
36 lifetime of the child by the person with priority to file on behalf of the child as provided in
37 subsection (c) of this section. A claim for an allowance must be made by filing a verified petition
38 with the clerk of court of the county in which venue would be proper under G.S. 28A-3-1. There
39 is no time limitation on bringing a claim for an allowance except that, if a personal representative
40 has been appointed for the decedent's estate, the claim must be made within six months after the
41 issuance of letters testamentary or letters of administration. In addition, if a personal
42 representative has been appointed for the decedent's estate, a copy of the verified petition must
43 be personally delivered or sent by first-class mail by the petitioner to the personal representative.
44 (c) The person entitled to file a petition on behalf of the child for a child's allowance shall
45 be in the following order of priority:
46 (1) The general guardian or guardian of the estate of the child, if any.
47 (2) The surviving parent of the child if the child resides with the surviving parent.
48 (3) The person with whom the child resides.
49 If the clerk of court determines that no person entitled to file a petition pursuant to this
50 subsection is a fit or suitable individual, the clerk, upon the clerk's own motion, may appoint
Page 2 DRS45091-MQ-61
 General Assembly Of North Carolina Session 2023
1 another individual if the clerk determines that individual better represents the best interests of the
2 child as the representative.
3 (d) and The child's allowance shall be exempt from any lien by judgment or execution
4 against the property of the deceased parent. The personal representative of the deceased parent
5 shall, within one year after the parent's death, assign to every such child the allowance herein
6 provided for; but if there is no personal representative or if the personal representative fails or
7 refuses to act within 10 days after written application by a guardian or next friend on behalf of
8 the child, the allowance may be assigned by a magistrate or clerk of court upon
9 application.decedent or any other claim made against or owed by the decedent's estate except
10 that the spouse's allowance under G.S. 30-15 shall take priority over any child's allowance. A
11 child's allowance shall only be awarded after the full spouse's allowance under G.S. 30-15 has
12 been awarded.
13 If the child resides with the surviving spouse of the deceased parent at the time the allowance
14 is paid, the allowance shall be paid to the surviving spouse for the benefit of the child. If the child
15 resides with its surviving parent who is other than the surviving spouse of the deceased parent,
16 the allowance shall be paid to the surviving parent for the use and benefit of the child. The
17 payment shall be made regardless of whether the deceased died testate or intestate or whether the
18 surviving spouse petitioned for an elective share under Article 1A of Chapter 30 of the General
19 Statutes. Provided, however, the allowance shall not be available to a deceased father's child born
20 out of wedlock, unless the deceased father has recognized the paternity of the child by deed, will,
21 or other paper-writing, or unless the deceased father died prior to or within one year after the
22 birth of the child and is established to have been the father of the child by DNA testing. If the
23 child does not reside with a surviving spouse or a surviving parent when the allowance is paid,
24 the allowance shall be paid to the child's general guardian or guardian of the estate, if any, and if
25 none, to the clerk of the superior court who shall receive and disburse the allowance for the
26 benefit of the child.
27 "§ 30-18. From what property allowance assigned.
28 Such An allowance under this Article shall be made in money awarded only out of cash or
29 property, other personal property than real property, of the estate of the deceased
30 spouse.decedent's estate. In the case of a spouse's allowance, the cash or personal property
31 awarded shall be distributed to the spouse. In the case of a child's allowance, the cash or personal
32 property awarded shall be distributed to the person entitled to file for the allowance on behalf of
33 the child pursuant to G.S. 30-17.
34 "Part 2. Assigned by Magistrate or Clerk.
35 "§ 30-19. Value of property ascertained.Property awarded to surviving spouse and
36 children.
37 The value determination of the personal property assigned to be awarded to the surviving
38 spouse and children and the value thereof shall be ascertained made by a magistrate or the clerk
39 of court of the county in which administration was granted or the will probated.venue would be
40 proper under G.S. 28A-3-1.
41 "§ 30-20. Procedure for assignment.assignment; order of clerk.
42 (a) Upon the application of the surviving spouse, a child by the child's guardian or next
43 friend, or the personal representative of the deceased, the clerk of superior court of the county in
44 which the deceased resided may assign the inquiry to a magistrate of the county. The clerk of
45 court, or magistrate upon assignment, court shall first ascertain the person or persons if the
46 surviving spouse is entitled to an allowance according to the provisions of this Article, and
47 determine the money or other and, if so, enter an order setting forth the personal property of the
48 estate, and pay over estate to or assign be awarded to the surviving spouse and to the children, if
49 any, so much thereof as they shall be spouse. Once the spouse's allowance has been awarded, the
50 clerk of court shall next ascertain if any children of the decedent are entitled to as provided in an
51 allowance according to the provisions of this Article. Article, and, if so, enter an order setting
DRS45091-MQ-61 Page 3
 General Assembly Of North Carolina Session 2023
1 forth the personal property of the estate to be awarded for the child's allowance. If a personal
2 representative has been appointed for the decedent's estate, the clerk of court shall provide a copy
3 of any order awarding an allowance to the personal representative of the decedent's estate.
4 (b) Any deficiencies shall be made up from any of the personal property of the deceased,
5 and if If the personal property of the estate shall be is insufficient to satisfy the allowance,
6 allowances awarded, the clerk of the superior court shall enter judgment against the personal
7 representative decedent's estate for the amount of the deficiency, to be paid deficiency. If a
8 personal representative has been appointed for the decedent's estate, the deficiency shall be
9 satisfied by the personal representative when a sufficiency of such assets shall come into the
10 possession of the personal representative's hands.representative.
11 (c) The clerk of court may, on the clerk's own motion, determine that a hearing is
12 necessary to determine whether a year's allowance should be awarded pursuant to the provisions
13 of this Article and, if so, what personal property should be awarded. If the clerk of court makes
14 such a determination, the clerk shall direct the petitioner to commence a contested estate
15 proceeding pursuant to G.S. 30-23 in order to determine the year's allowance.
16 …
17 "§ 30-21.1. Reporting of allowances by personal representative.
18 If the assets awarded as part of a spouse's allowance or a child's allowance are distributed
19 directly to the spouse or the petitioner for the child and never come into the possession of the
20 personal representative, the assets shall not be reported on the inventory for the decedent's estate
21 or on any subsequent accounting.
22 …
23 "§ 30-23.1. Contested proceeding regarding allowance.
24 (a) If no contested estate proceeding under G.S. 30-20(c) was commenced to determine
25 an award of an allowance under this Article, any person with standing, including the personal
26 representative of the decedent's estate, may bring a proceeding to challenge the award of a spousal
27 allowance or a child's allowance, including, but not limited to, a proceeding to challenge the
28 validity of an award of a year's allowance, a proceeding to challenge the amount of a year's
29 allowance awarded, and a proceeding to challenge the assets awarded as part of a year's
30 allowance. If a contested estate proceeding was commenced under G.S. 30-20(c), then any person
31 with standing, including the personal representative of the decedent's estate, who was not a party
32 to the contested estate proceeding may bring a proceeding in accordance with this section.
33 (b) Any proceeding brought pursuant to this section shall be conducted as an estate
34 proceeding in accordance with the provisions of Article 2 of Chapter 28A of the General Statutes
35 and must be brought within one year of the date the order awarding the year's allowance was
36 entered.
37 …
38 "Part 3. Assigned in Superior Court.Additional Year's Allowance.
39 "§ 30-27. Surviving spouse or child may apply to superior court.for additional allowance.
40 In addition to any support otherwise assigned to the A surviving spouse or child under this
41 Article, without application to the personal representative, the surviving spouse, or the child
42 through the child's guardian or next friend may, after the date specified in the general notice to
43 creditors as provided for in G.S. 28A-14-1(a), and may file an estate proceeding with the clerk
44 of court seeking an award of additional allowance in excess of the amount allowed to the spouse
45 or child under G.S. 30-15 or G.S. 30-17. Any such proceeding must be filed within one year after
46 of the date of the decedent's death, apply to the superior court of the county in which
47 administration was granted or the will probated to have a year's support assigned at an amount
48 other than prescribed in G.S. 30-15 and G.S. 30-17.except that if a personal representative was
49 appointed for the decedent's estate, any such proceeding must be filed within six months after the
50 issuance of letters testamentary or letters of administration. Any proceeding under this section
Page 4 DRS45091-MQ-61
 General Assembly Of North Carolina Session 2023
1 shall proceed as a contested estate proceeding under Article 2 of Chapter 28A of the General
2 Statutes.
3 …
4 "§ 30-30. Judgment.
5 The clerk of superior court shall hear the matter and determine whether the petitioner
6 surviving spouse or child is entitled to some or all of the relief sought and, if the clerk determines
7 that the petitioner spouse or child is so entitled, the clerk shall determine the money or other
8 personal property of enter judgment against the estate and assign to the petitioner a sufficiency
9 thereof for petitioner's support for one year from the decedent's death. Any deficiency shall be
10 made up from any of the personal property of the deceased, and if the personal property of the
11 estate shall be insufficient for such support, the clerk of superior court shall enter judgment
12 against the for the amount of the deficiency. If a personal representative for has been appointed
13 for the decedent's estate, the amount of such deficiency, to be paid deficiency shall be satisfied
14 by the personal representative when a sufficiency of such a