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Family Relationships Upon Death

Everyone must eventually face death, whether it is their own, a loved one, or that of their estranged spouse or a former spouse. In family law, it is no different. As it must, the law accounts for these contingencies. Although most people don’t think that much about it, just like a marriage, a death impacts many family rights and obligations. While family laws address death, it is an area of the law that intersects with inheritance laws. This article focuses on the North Carolina family law perspective.

Upon the death of a spouse, the legal status of the surviving spouse automatically becomes widow or widower.  This is a legal status used to determine all kinds of rights, including certain retirement benefits, social security, real property (depending on how the deed is drafted), and even the right to obtain sensitive documents from the North Carolina Vital Records. Those who are widows or widowers also receive certain military benefits, such as being eligible for interment at a State veterans cemetery, payment of a death gratuity and the right to access otherwise restricted military discharge records.  NC Gen. Stat. §65-43.1 and NC Gen. Stat. §47-113.2.

Marital Status 

A widow also has the right to apply to the clerk of court to resume the use of her maiden name, the name of a prior deceased husband, or of a previously divorced husband in the case of a widow.  A widower also has the right to apply to the clerk to resume the use of his premarriage surname.  NC Gen. Stat. §101-8.  Widows or widowers may have the right to file certain lawsuits, such as wrongful death, including loss of consortium, or emotional distress, against a third party based upon the death of the other spouse.

Remains 

Perhaps the most fundamental issue of all is who has the authority to dispose of someone’s remains.  An adult has the right to “authorize the type, place, and method of disposition of the individual’s own dead body” by funeral or cremation contract, a healthcare power of attorney, a written will or other statement signed by the individual and witnessed by two persons who are at least 18 years old. Service members and certain federal employees may appoint the “person authorized to direct disposition” by using a Department of Defense DD Form 93.   If the deceased person did not use any of the above methods to express his or her desire related to the funeral and disposal of his or her remains, the surviving spouse “may authorize the type, method, place, and disposition of the decedent’s body.”  NC Gen. Stat. 130A-420. This assumes no contract such as a prenuptial agreement or separation agreement has been executed that provides otherwise. There are special rules for Native American remains determined to be antiquities.

Parents and Children 

When a parent passes away, the surviving parent is automatically the sole custodian of the child unless there are extraordinary circumstances, such as when a court has terminated the rights of that parent.  Children are usually entitled to social security benefits as a result of the death of that parent.  If a married person wants to adopt a child, North Carolina requires both spouses to sign the adoption petition.  If an adoption petition has been filed before the death of one of them, the court may still enter an adoption decree listing the deceased party as a parent, essentially allowing him or her to adopt the child after death. The adopted child is then legally treated as the natural born child of the deceased party for the purpose of inheritance.  NC Gen. Stat. §48-2-204.

If paternity of a minor child is disputed after the death of a suspected biological father, in certain situations, the law permits biological testing of the child and the deceased man to determine whether he is the biological father. If the court rules that the deceased person is in fact the biological parent, the court must “backdate” any decree of paternity to indicate paternity before the date of the death. NC Gen. Stat. §49-14.

Unborn Children

It is a crime after the twentieth week of a woman’s pregnancy “to advise, procure or cause a miscarriage or abortion when the procedure is performed by a physician licensed to practice medicine . . .” unless “there is substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the woman.”  See NC Gen. Stat. §14-45.1. It is a felony to conceal the birth of a child “by secretly burying or otherwise disposing of the dead body of a newborn a child “by secretly burying or otherwise disposing of the dead body of a newborn child.” Anyone “aiding, counseling or abetting any other person in concealing the birth of a child . . . shall be guilty of a Class 1 misdemeanor.  NC Gen. Stat. §14-46.

When there is what the law calls a “spontaneous fetal death,” either parent may file an application requesting a “certificate of birth resulting in stillbirth.” The certificate “shall not include any reference to the name of the stillborn child if” the death report doesn’t list one, and one is not listed by the parents.  Any such certificate “shall clearly indicate that it is not proof of a live birth.”  NC Gen. Stat. §130A-114.

A person who unlawfully causes the death of an unborn child is guilty of the separate offense of murder of an unborn child if that person willfully and maliciously takes some action with the intent to cause the death.  Along with a few other situations, the crime is also committed if the person who causes the death is doing something “is inherently dangerous to human life and is done so recklessly and wantonly that it reflects disregard of life.” NC Gen. Stat. §14-23.2

Related Reading:

Financial Issues Upon Death

Rights of Unborn Children

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