What Rights Do You Have After the Death of An Ex?

HomeBlogEstate PlanningWhat Rights Do You Have After the Death of An Ex?

If your ex-spouse passes away, you may wonder what rights you have now. This time can feel confusing, especially when it comes to estate law. In this blog post, we will look at the rights you have after the death of your ex-spouse in North Carolina. Ex wife rights after death are the same ones available to ex husbands in NC. We will also discuss Social Security benefits and inheritance laws so that you see what to expect.

Ex Husband & Ex Wife Rights after Death in NC

In North Carolina, your rights after your ex’s death depend on your relationship with your ex.

If you were legally married at the time of death, you’re still considered the legal spouse and entitled to inherit any property named for you in the will. This relationship holds true even if you are married but separated. Even after years of living as an estranged spouse, if no divorce occurred, you still receive the benefits of a married partner when your spouse passes away if they named you in their will.

However, ex husband and ex wife rights after death are a different story.

Inheriting From the Will After Divorce

If a legal absolute divorce occurred before your spouse died, you are not entitled to inherit assets through your spouse’s last will and testament. However, you may inherit if your spouse specifically named you in the will after the divorce proceedings.

In NC, when you divorce, the statutes automatically revoke all provisions of a Last Will and Testament that favor a former spouse. The only time this is not true is if the spouse specifically writes you back into the will after your divorce.

This exclusionary law prevents you from inheriting unless your spouse chooses to include you after the divorce. The same statute prevents you from serving as your former spouse’s executor, trustee, conservator, or guardian.

If Your Ex-Spouse Dies Without a Will

NC Intestate Law determines who will inherit if your spouse did not write a will. Generally, the law divides property between a legal spouse, parents, and blood-related or adopted children.

While you could inherit from a will if you were legally married but estranged, such is not the case for an ex who dies without a will.

If your ex dies without a will, you receive nothing through intestate law if you:

  • Go through a “divorce from bed and board.” This term denotes a separation in NC, not a divorce. Absolute divorce is what most of us think of when we think of divorce in NC.
  • Voluntarily separated from your spouse and lived in adultery without your ex-spouse condoning your behavior.
  • Willfully and without just cause abandoned and refused to live with your spouse (and you’re not living with them when they die)
  • Obtain a divorce not recognized by the state of NC

Inheriting Assets Outside of the Will

There are several situations where you can inherit assets from a deceased spouse as their ex-spouse. These assets are unrelated to the last will and testament. They do not go through the costly and often lengthy probate court process. The court has no say in these assets as far as inheritance goes.

Some of these “excluded from probate” assets that you may inherit include:

  • Any assets you owned in a living trust together
  • A trust naming you as beneficiary
  • Life insurance policies where you are the named beneficiary
  • 401(k)s, IRAs, and other retirement accounts where you are the named beneficiary
  • Securities in transfer-on-death accounts where you are the named beneficiary. “North Carolina lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death.” (1)
  • Pay-on-death bank accounts where you are the named beneficiary
  • Joint tenancy real property where you owned together with rights of survivorship
  • Property held in tenancy by the entirety if you are still legally married. You can be estranged or separated and still inherit property this way.

Social Security Benefits

Inheritance rights aside, you may also qualify for Social Security benefits if you meet specific criteria. Your marriage must have been at least ten years long for you to receive spousal benefits.

Benefits paid to you as a surviving divorced spouse won’t affect the benefit amount for other survivors’ benefits (unless you receive benefits because you care for your spouse’s child).

The amount you receive depends on these factors:

  • Full retirement age or older: 100% of the deceased worker’s benefit amount unless you remarried before age 60 (before age 50 if disabled)
  • Age 60 to full retirement age: 71½ to 99% of the deceased worker’s basic amount (unless you remarried before age 60 and are not disabled)
  • With a disability aged 50 through 59: 71½% (unless you remarried before age 50)
  • Any age, caring for a child under age 16: 75%

Bottom Line

It’s essential to understand your rights after an ex-spouse’s death so you can plan accordingly. If you have any questions about your particular situation, it’s best to consult with an experienced estate planning attorney in North Carolina.

Estate planning can be a complex process, especially when divorce is involved. An experienced estate planning attorney can help you navigate the system and ensure that others honor your wishes. 

We Can Help

Contact us at Vail Gardner Law today to schedule a consultation. We would be happy to answer any of your questions and help you plan for your future. We work with you to best meet your particular needs and circumstances and protect you from loss. Talk with us about your asset protection issues and estate planning goals to find answers.