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Financial Issues Upon Death

Family Support

Death terminates all rights to alimony, and any the obligation to pay it.  In North Carolina, a spouse cannot successfully sue the estate of his or her late husband or wife to seek alimony payments. However, the parties themselves can spell out exactly what they intend as it relates to the death of a party. Agreements of this nature can be pre-marital agreements, also called pre-nuptial agreements, separation agreements, or some other type of contractual agreement. People are also free to negotiate about beneficiary designated assets, such as life insurance, which will pay the beneficiary that has been designated in the event of death.

If the deceased spouse failed to abide by the terms of such a contract, such as failing to name the other party as the beneficiary of an investment account for example, the surviving spouse may sue the estate of the deceased spouse. Although past due child support is vested, meaning it cannot be increased or decreased once it is past due, North Carolina statues terminate all future child support (for that child) upon the death of a child, or the death of the parent who is obligated to pay it.  NC Gen. Stat. §50-13.10. The child of the deceased parent may qualify for social security death benefits or other benefits.

Marital Assets and Debts

When parties have separated before a death, the widow or widower has the right to file a claim for the division of marital property and debt, called equitable distribution, against the estate of the deceased.  This is in direct contrast to alimony or child support rights, both of which terminate upon the death of either adult. A widow or widower may file a claim for equitable distribution within twelve months of the date of death if they were separated when the death occurred. Deeds are sometimes used to convey cemetery lots, and sometimes owned by entering into a contract, without a deed.

Fortunately, at least in Pitt County, lawsuits for equitable distribution of marital property after the death of a spouse are not frequently litigated. But if they are, competing property rights of the deceased and the widow or widower are balanced with any provision in a last will and testament, the right to survivor benefits, life insurance and any real property.

Inheritance Laws and Lawsuits After Death

The executor (if male) or executrix (if female) of the estate for the deceased party is responsible for defending a lawsuit when claims are made against the estate. That person may also file lawsuits on behalf of the deceased, such as a claim for wrongful death, against someone who negligently caused the death. The negligent party may face a money judgment for wrongful death, which includes loss of consortium described by the statute as the: “Services, protection, care and assistance” of the deceased, and “society, companionship, comfort, guidance, kindly offices and advice” of the deceased. NC Gen. Stat. §28A-18-2.

Note that the laws concerning inheritance with or without a Last Will and Testament are key in this situation, not just family law statutes concerning spouses.  Inheritance laws set out rules about certain financial distributions to surviving spouses, and sometimes, the option to elect an allowance or homestead rights.

To make a very long and complex story short, after a spouse has been missing for at least five years, a judge may make a ruling on the ownership of his or her assets.  Upon ruling on that matter, the surviving spouse and/or family members may then move forward essentially as the beneficiaries and owners of jointly owned property.  NC Gen. Stat. §28C-11.

There is a “slayer law” in North Carolina.  When the spouse (who will then be a widow or widower) murders his or her spouse, all spousal inheritance rights are lost. This also applies when a married couple has purchased real property after they marry, in both names, meaning that the surviving spouse will not automatically own it.  NC Gen. Stat. § 31A-4.

 

Related Reading:

Death and Family Relationships

 

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