North Carolina Spousal Rights: What Changes When You Marry, Divorce, Or Remarry

Divorce, remarriage, and blended families can quietly rewrite your estate plan—unless you rewrite it first. We dig into how North Carolina law treats spouses before and after marriage, from inchoate rights in real property to the elective share and the year’s allowance, then map the steps that keep your wishes intact without sparking a courtroom brawl. Along the way, we highlight the silent saboteurs: beneficiary designations, joint accounts, POD/TOD forms, life insurance, and retirement plans that do not auto-update after divorce and can send your life’s savings to the wrong person.

We share practical strategies for planning around a new marriage, including prenups and postnups, coordinated wills and trusts, and clear instructions that balance support for a spouse with protection for children from a prior relationship. We explain when a trust can calm family tensions, why an old will won’t shield your estate from a spouse’s statutory rights, and how elective share percentages scale with the length of marriage. We also cover real-world pitfalls—like estranged spouses who resurface at probate, and assumptions about common law marriage that don’t hold in North Carolina.

If you’re separated, finalizing the divorce matters; if you’re newly single or newly coupled, updating every document and designation matters even more. We offer a concise checklist, candid examples, and legal context so you can act with clarity and avoid avoidable fights. Ready to protect your plan and your people? Subscribe, share this episode with someone navigating divorce or remarriage, and leave a review with your top estate planning question—we may answer it on a future show.

Transcript

Setting The Stage: Marriage And Estates

Brenton Begley 0:09

Hello and welcome to the Elder Law Report. I'm Brenton Begley, attorney and partner with McIntyre Elder Law, and I'm joined today by Jane Dearwester. Hi, Jane.

Jane Dearwester 0:19

Hi there.

North Carolina Spousal Rights 101

Brenton Begley 0:21

All right. So we're talking today about divorce and remarriage and its effect on your state plan or potential effect. Hopefully, after watching this, you'll have enough information to know its potential effect on your estate plan such that it has no effect. If you're in the situation where you're getting a divorce, it's hard enough. Um, and sometimes it's very hard to think about what else that could affect, what other ancillary second or third or third order effects that may have. Um, but certainly estate planning is very important. We want to make sure we maintain the sanctity of that estate plan, even going through something as difficult as a divorce. Also, if you've been divorced and remarried, it's something that you should think about with respect to your estate plan on how to approach uh maybe the new marriage and uh to make sure you do not leave an unupdated estate plan behind for your new spouse. So, Jane, let's talk about it. Let's jump right in. What should folks know about divorce and remarriage as it relates to your estate plan?

What Divorce Revokes Automatically

Jane Dearwester 1:30

Yeah, I think um, especially in North Carolina, which is where we all practice, there are certain spousal rights that you have inherently just because you're married. So, what comes to mind immediately for me is the establishment of incohate marital rights in all real property. So if you go into a marriage, any real property that you own in the state of North Carolina, your spouse, as of your date of marriage, automatically gains a uh, it's called an incohate marital interest in your property, even if their name is not on the deed. And if you don't have a prenup, a prenuptial agreement addressing that, that can cause complications. So you definitely need to be aware of that. Also, um, when getting married, your spouse is going to acquire rights at your death to move the court for an elective share, for a spousal allowance. And again, these are things that could be waived in a prenuptial agreement. If you want, for example, your children or siblings or somebody else uh to inherit your estate and not necessarily your espouse your spouse. Those are all things that you should discuss with your estate planning attorney, maybe a family law attorney, uh together going into it. It's it's a big deal. It's a big decision. So you want to go into it not only with the excitement of the relationship, but with your eyes wide open to what legal aspects come into play by virtue of getting married.

Trusts And Beneficiary Designations

Can You Disinherit A Spouse

Brenton Begley 3:07

Right. So the good news is if you do get divorced by operation of law, which means by not even changing the documents themselves, uh the spouse is removed from the estate plan as the executor of your estate if you name them as the executor. Um, if you name them as the power of attorney, under a general durable power of attorney, they are automatically removed. Um and so so those things are important to know because they cannot act as the executor, they cannot act as your power of attorney. Now, they're also removed as the vise under the will, meaning that if you left them something in the will, then they're removed. Now, if the language of the will states otherwise, or the language of the power of attorney states otherwise, it's important to understand that that's not the case, right? So be careful when reading a will, unless that's your intent. You know, some people are are divorced for the purpose of obtaining a benefit, or divorced for the purpose of, you know, some financial or legal reason that benefits them, not because of a breakdown of the actual relationship. Um, but and so in those situations it may be beneficial to have that language that says, notwithstanding the the divorce, I'm still going to have this person as my executor, divise the under the will, or uh my power of attorney. Um, but so that is you know the good news that generally those things are are gone away with. It's important to understand though that in a trust, if you have a joint trust, that trust does not automatically revoke the spouse. Okay, so it's important that if you put a trust in place or any other documentation where you name the beneficiary, like if I have a retirement account, an investment account, a an annuity, um, a bank account where I've named my spouse as payable on death or transferable on death beneficiary, that's not automatically revoked. Joint ownership in a property, joint ownership in an account, that's not automatically revoked. These are all things you need to consider upon divorce, hopefully, are something that you settle upon divorce as a part of the actual divorce itself and property settlement. But things, as we know, chain fall through the cracks. So those are important things to get squared away when you're in the process of the divorce. But you were mentioning, look, you know, if you get divorced and get remarried, maybe you don't want to leave your kids uh stuff, maybe you don't want to leave the new spouse stuff, maybe you want to do a little bit of both. Um, so you know, if you do get remarried without a prenuptial agreement, I guess the question for the folks at home is can you disinherit the spouse? Can you just leave them nothing? What if you just don't put a new will in place? What does it does the spouse just get nothing?

Elective Share And Year’s Allowance

Jane Dearwester 6:02

Right. You can't disinherit the spouse without them being fully informed and signing a waiver. So in North Carolina, you can't completely disinherit your spouse without them taking an affirmative step to acknowledge they understand they're being disinherited. Otherwise, they're gonna have these statutory rights for elective share or the year's allowance. And I'm glad you mentioned the beneficiary designations, Brenton, because I say when I'm out speaking in our seminars to the community, uh, don't be like me, because I left my ex-husband on as beneficiary designations on my bank accounts for over 10 years after we were divorced. So it's fixed now. Thank you. But um, that is one, again, in the in the you know, somewhat stressful uh times of going through a divorce, you might not remember to change your life insurance beneficiary designations. This is when a good estate planning attorney is going to come in handy to ask you about all these questions to make sure that you've made the switch. And we have clients come in very often. We say, change your estate planning documents after every major life change. So a marriage or divorce, definitely a major life change. Both of those things have specific legal implications that you want to know, you want to be advised on so you can customize your plan to fit your goals.

Avoiding Litigation And Clarifying Intent

Brenton Begley 7:37

Right. And, you know, practically if you get divorced and don't even get remarried and your spouse is named in the will, you don't want there to be any sort of possible issue for that person to get a foot in the door. I have a case where, you know, uh, and I've had cases where they um there there's been a divorce and then a death, um, and the surviving ex-spouse is trying to, you know, probate a will um because the will was created before the marriage, for example. So to say, oh no, no, no, it's not revoked, even though it says so in the statute, because we actually this this was created before we ever got married. Um you know, so so there's little things like that where you know a good attorney can try to get their foot in the door and um for their client, right, to try to claim some type of share. But you're right, you can't disinherit a spouse. Uh so you know, if if if if you do have a will and in place already, even if you've not named an ex-pouse and you do decide to get married, then you can't just rely on the old will. Um, that old will is subject to any provisions in the law that will override it. One of the main provisions in the law that will override it is those rights of the spouse that you mentioned earlier, the elective share, meaning that the spouse, depending on the length of the marriage, can ask the court and be awarded a percentage of the estate depending on the length of the marriage, right? So up to 50%. Um in addition to that, um as a separate thing, not not more is not an add-on, it actually reduces the elected chair. But spouse may also ask the court for the year's allowance, which which is up to $60,000 worth of um personal property from the deceased. Um, you know, and so if you if if you've only been married like a year and the person dies, you know, you might just do the year's allowance, $60,000 and walk around away. Um, but a good attorney would be able to sit down with the spouse, calculate the amount that they're entitled to, and make that claim against the estate, and um be able to recover up to 50% from the estate. And you know, that also could result in attorney's fees and ongoing litigation that you don't want to subject your estate to, if at all possible. So that's that's something to avoid. Um but if you're going to get remarried, it's a good idea to tell everybody how that new spouse fits into that estate plan for their benefit and for everyone else's benefit to avoid unnecessary claims or litigation after death. We handle those all the time. We see how they go. Um, they can they can be quick and be settled, or they can drag out for a very, very long time.

Jane Dearwester 10:37

I know something else we've seen is an estranged spouse who might just kind of disappear, and our client is left technically still legally married to this person, but they literally don't know where the person is. There's no contact for maybe a period of years. Getting an actual divorce is very important in those circumstances because some people kind of let it go and they think it's out of sight, out of mind. But there is a way, I'm not going to explain it in detail here, but there is a way to get divorced even from an estranged spouse. And I would argue that's even more so important to make sure you sever those ties from someone who really has kind of disappeared and you have absolutely no contact with that person. You don't want, you want to sever those final threads and get that legal divorce decree in place so that you can move on with your life and not have something come up later.

No Common Law Marriage In North Carolina

Brenton Begley 11:39

That's a big deal because ultimately, you know, you could you your loved ones could bar that estranged spouse from receiving from your estate because of you know separation, abandonment, things like that. But you don't, again, you don't want to put your loved ones in the position to have to prove that uh to the court because the spouse automatically gets a share. And the clerk's not going to let you close the estate without making sure that the spouse gets a share. And if you want to claim that the spouse um their rights are barred from receiving from the decedent's estate, then that's on you, Mr. Burke.

Jane Dearwester 12:13

Yeah. And I also think important to mention in North Carolina, there is no common law marriage. So I don't care if you've lived together 20 years, you are not married. Even if you hold yourself out to the public and call each other husband and wife, you have to go through a specific ceremony and a specific process to get a marriage license in North Carolina, requires a ceremony. So there is no common law marriage. If there is in other states, so if you're uh married by common law marriage in another state and move to North Carolina, as long as the state you are in, you're considered married in that state, that can translate. But I think that one's important too, because I think people assume once they've lived together for a certain amount of time, oh, they're common law married. But again, that varies from state to state. So that's another one to be careful.

Big Takeaways And How To Get Help

Contact Info And Free Consultation

Brenton Begley 13:05

Right. Absolutely. Very good point. And um, you know, overall, I guess the point we're trying to make is that marriage, divorce, both a big deal, have a huge impact on the estate plan plan that you have in place potentially, and don't just think about the will. Your estate plan comprises of the tools that you have in place, the powers of attorney wills, trust deeds, and your estate plan also comprises of any designations that you've made on any of the assets that you own, including accounts. Um, so be mindful of that. And Jane, it's a great conversation. Thank you very much. Yeah, thank you. This has been the Elder Law Report. If you have questions about how to protect your hard-earned money and property, how to navigate the a divorce or remarriage with respect to your estate plan or anything else we do, which is estate planning and elder law, give us a call. You can reach us at 704-259-7040 or visit our website at mcelderlaw.com to schedule your free consultation today. Thank you.