Cecil Harvell and Wes Collins of Harvell & Collins Law Firm discussed the statutory rights of surviving spouses in North Carolina, focusing on the elective share, spousal allowance, and intestate rights. They detailed specific circumstances, such as divorce, adultery, abandonment, invalid out-of-state divorces, and bigamous marriages, which can bar these rights under statute 31A-1. The attorneys emphasized the importance of legal representation in these complex cases, particularly when contesting spousal claims or protecting an estate, and highlighted procedures for raising these defenses in court.

Spousal Rights in North Carolina Estates

• Explanation that a surviving spouse in North Carolina has statutory rights to the deceased spouse’s estate, which are significant and codified in state law.

• These rights include elective share, spouse’s allowance ($60,000), intestate rights, and the right to administer the estate when the deceased spouse has no will. [04:00]

Acts Barriers to Spousal Rights (N.C. General Statute 31A-1)

• Discussion of scenarios that can bar a surviving spouse’s statutory rights:

  1. Divorce (absolute or from bed and board) waives these rights. [08:30]

  2. Spouse living in adultery without condonation can be barred from rights; proving adultery requires evidence (e.g., texts, surveillance). [10:30]

  3. Abandonment of the spouse without just cause also bars rights; just cause includes abuse or protective orders, but voluntary leaving without reason counts as abandonment. [13:10]

  4. Divorce obtained in another jurisdiction not recognized by North Carolina law bars rights. [17:30]

  5. Knowingly contracting a bigamous marriage bars rights; knowledge is key to this determination. [18:50]

Importance and Nuances of the Law Around Spousal Rights

• Emphasis on the sanctity of marriage in North Carolina law and respect for spousal rights, but with exceptions to protect against abuse of these rights. [20:20]

• Observations on how often legal files involve uncertainty about marital status (e.g., unaware if divorced or not living together). [21:40]

• The significance of the term "knowingly" for bigamy and other nuances highlighted. [24:00]

Legal Procedures for Challenging Spousal Rights

• When spouses claim the $60,000 spouse allowance, it is usually granted automatically by the clerk of court without a hearing.

• To challenge spousal rights based on acts that bar those rights, formal motions or petitions must be filed to alert the court.

• Courts may transfer contested issues to Superior Court where jury trials and discovery take place.

• Discovery can be used to subpoena evidence like bank records and communications to support or refute claims of adultery, abandonment, etc. [26:30]

Advice and Considerations for Handling Such Cases

• Clients should consult attorneys rather than proceed unrepresented due to complexity.

• Obtaining a divorce is highlighted as a clear way to resolve these disputes.

• For those who remain married but separated, legal consultation is advised to protect estates from inappropriate claims. [29:30]

Specific Discussion on Abandonment and Long-Term Care Situations

• Question raised about whether placing a spouse in long-term care constitutes abandonment.

• Clarification that abandonment requires voluntary and unjustified separation; receiving care in a facility generally is not abandonment.

• However, egregious neglect (e.g., long-term "tucked away" without care or visitation) might be interpreted legally as abandonment in some cases. [30:50]