Bill Summary for S 218 (2023-2024)
|View NCGA Bill Details||2023-2024 Session|
AN ACT TO UPDATE AND REORGANIZE THE GENERAL STATUTES RELATING TO SPOUSAL AND CHILD'S ALLOWANCE IN ESTATES AND TO AMEND THE GENERAL STATUTES TO TREAT WILLS AND REVOCABLE TRUSTS ALIKE IN CONSTRUCTION, INTERPRETATION, AND ADMINISTRATION WHEN A MARRIAGE IS DISSOLVED BY ABSOLUTE DIVORCE OR ANNULMENT AFTER EXECUTION OF THE WILL OR REVOCABLE TRUST, AS RECOMMENDED BY THE NORTH CAROLINA BAR ASSOCIATION.Intro. by Galey, Daniel, Sawrey.
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Repeals the following statutes from Article 4, GS Chapter 30, pertaining to surviving spousal allowances: GS 30-16 (duty of personal representative, magistrate, or clerk to assign allowance), GS 30-21 (report of clerk or magistrate), GS 30-23 (right of appeal), GS 30-25 (personal representative entitled to credit), GS 30-28 (nature of proceedings; parties in superior court), GS 30-29 (what superior court petition must show), GS 30-31.1 (service of judgment and appeal in superior court proceedings), GS 30-31.2 (execution in superior court proceedings).
Extensively amends Article 4 of GS Chapter 30 as follows. Revises GS 30-15 (pertaining to when a spouse is entitled to an allowance) to expand the circumstances when the surviving spouse is barred from seeking an allowance from the decedent’s estate to all acts under GS 31A-1 (listing acts that bar the rights of a spouse) or other applicable law. (Currently, law only bars allowance when surviving spouse forfeits rights thereto.) Specifies that the spouse's allowance will be in addition to the spouse's share of the decedent's estate if the decedent died intestate but will be charged against the spouse's share of the decedent's estate if the decedent died testate. Specifies that if the surviving spouse dies after the petition is filed but before the claim for an allowance has been fully satisfied, any deficiency judgment existing at the time of the surviving spouse's death will not expire. Sets rules for how the right of a surviving spouse to file a claim for an allowance must be exercised during the spouse’s lifetime. Removes residency requirements related to spouse’s ability to claim spousal allowance. Specifies that the spouse’s allowance takes priority over any child’s allowance. Makes other technical changes.
Amends GS 30-17 (pertaining to allowance for children) as follows. Narrows the scope of children entitled to a child’s share from a decedent’s estate by removing children who are less than 22 years of age and a full-time student in any educational institution, children under 21 years of age who have been declared mentally incompetent, and children under 21 years of age who are totally disabled from the class of children covered by the statute. Clarifies that the child’s allowance is in addition to the child’s share of the estate, regardless of whether the decedent died with a will. Directs that the right of a child to file a claim for an allowance must be exercised during the child’s lifetime by the person with priority to file on behalf of the child, (in the following order: either the general guardian of the child or the estate of the child, if any; the surviving parent, if the child resides with the surviving parent, the person with whom the child resides, or a court appointee, if there is no fit or suitable person who falls under those categories). Specifies procedure for filing child’s claim. Directs that the child’s allowance is exempt from any lien or judgment against the property of the decedent or any other claim made against or owed by the decedent’s estate except for the spousal allowance. Directs that the child’s allowance can only be awarded after the full spouse’s allowance has been awarded.
Removes language requiring the personal representative to assign all child’s allowances to all qualifying children within one year after the parent’s death and providing for a procedure if there is no personal representative or the personal representative fails to act. Removes language specifying persons to be paid the child’s allowance. Removes language directing that the child be paid regardless of whether the surviving spouse petitioned for an elective share. Removes language stating that the allowance is not available to a child of a deceased father who is born out of wedlock, unless the paternity of that child has been formally recognized. Makes other technical changes.
Amends GS 30-18 (pertaining to property from which the allowance is assigned) to specify that a spousal allowance will be distributed to the spouse and a child’s allowance will be distributed to one of the persons with priority to file on behalf of the child, specified above. Makes other technical changes.
Amends GS 30-19 to rename section title “Property awarded to surviving spouse and children.” (Currently titled, Value of property ascertained.) Removes magistrate as a judicial officer who may ascertain the value of a spousal or child’s allowance so that just clerk of the court where venue is proper makes that calculation. Makes technical changes.
Makes conforming changes to GS 3-20 (procedure for assignment for spousal/child’s allowance) to account for priority of spousal allowance, the procedure for deficiencies, and to remove references to magistrates. Directs that a copy of any orders awarding an allowance be provided to the personal representative of the decedent’s estate. Allows for the clerk to determine, on its own motion, if a hearing is necessary. If so, directs the clerk to have the petitioner file a contested case proceeding under GS 30-23.
Enacts GS 30-21.1 setting forth rules related to reporting of spousal/child allowances by the personal representative of the estate. Enacts GS 30-23.1 authorizing any person with standing, including the personal representative of the decedent’s estate, to bring a proceeding to challenge the award of a spousal allowance or a child’s allowance, including but not limited to, a proceeding to challenge the validity of an award of a year’s allowance, a proceeding to challenge the amount of a year's allowance awarded, and a proceeding to challenge the assets awarded as part of a year's allowance, so long as no contested case proceeding under GS 30-20, set forth above, has commenced. Further specifies that if a contested estate proceeding was commenced under GS 30-20, then any person with standing, including the personal representative of the decedent's estate, who was not a party to the contested estate proceeding may bring a proceeding in accordance with this section. Sets filing deadlines and directs that the contested case proceeding should be conducted as an estate proceeding brought as a probate action under Article 2 of GS Chapter 28A.
Renames Part 3 of Article 4, GS Chapter 30, Additional Year’s Allowance. (Currently, Assigned in Superior Court.) Amends GS 30-27 to direct that a proceeding for an additional allowance must be filed within six months after the issuance of letters testamentary or letters of administration if a personal representative was appointed. Directs that the proceeding should proceed as a contested case proceeding under Article 2 of GS Chapter 28A. Makes technical changes.
Amends GS 30-30 (pertaining to judgments entered in matters assigned in superior court) to have the clerk enter judgment against the estate for the amount of the deficiency once the clerk determines that a spouse or child is entitled to relief. (Currently, judgment not entered unless personal property of the estate insufficient to pay the money owed to the spouse or child.) Directs the personal representative (if any) to pay the deficiency as soon as they have the assets from the estate to do so. Makes clarifying and technical changes.
Amends GS 30-31 (pertaining to the amount of allowance), to remove condition that in awarding the amount of allowance, the clerk must take into consideration the estate and condition of the decedent. Amends the three criteria the clerk must take into consideration if awarding an amount to support the petitioner without regard to the dollar amounts set forth in Article 4 as follows: (1) adds additional consideration of the financial condition of the decedent’s estate to how the amount is fixed (currently, the amount allowed is fixed with due consideration for other persons entitled to allowances from the decedent’s estate); (2) changes references to net income to after-tax income in setting a ceiling on the total amount of all allowances, so that the prong reads, “the total value of all allowances does not in any case exceed one-half of the decedent’s annual after-tax income, averaged over the three calendar years preceding the calendar year of the decedent’s death” and provides definition of after-tax income; (3) makes technical changes to the attorneys’ fees prong. Makes other technical and clarifying changes.
Amends GS 28A-15-10 (pertaining to assets of decedent’s estate for limited purposes) to add a provision directing that “any asset acquired by a personal representative or collector will be used to first pay the allowances allowed to a spouse and children under Article 4, GS Chapter 30. Directs that after the allowances are fully satisfied, an asset may be used to satisfy other claims against an estate. Corrects statutory citation.
Amends GS 31-5.4 (revocation by divorce or annulment; revival) to add exceptions as to when revocation by divorce or annulment does not apply (1) if the testator executes a subsequent valid testamentary document that makes express reference to the will, such as by date of the will, and which modifies the will or (2) the testator remarries the former spouse prior to the testator’s death, unless the remarriage is subsequently dissolved by absolute divorce or annulment. Makes technical and clarifying changes. Specifies that a former spouse includes a purported former spouse.
Amends GS 36C-6-606 (pertaining to revocation of provisions in revocable trust by divorce or annulment; revival) so that it expressly bars a former spouse from being appointed as a executor, trustee, conservator, guardian, or any other fiduciary or nonfiduciary position after dissolution of marriage. (Currently only expressly states trustee.) Sets forth two exceptions: (1) the settlor executes a subsequent valid amendment to the revocable trust, such as by date of the revocable trust, and which modifies the revocable trust; (2) the settlor remarries the former spouse prior to the settlor's death, unless the remarriage is subsequently dissolved by absolute divorce or annulment. Specifies that the term "former spouse" includes a purported former spouse. Makes other technical and clarifying changes.