The intestacy law severely affects the lives of non-traditional and same sex couples. The intestacy law governs the settlement of estates of those who die without a properly executed Last Will and Testament. For most traditional married couples, North Carolina's intestacy law provides for the preferred disposition of one's property upon their death. Chapter 29 of the North Carolina General Statutes provides for minimum distributions to a legal spouse of a decedent. For example, if a person dies without a Will, leaving only a surviving spouse, then all real and personal property will pass to his or her surviving spouse. However, North Carolina law neither allows same-sex couples to marry nor does North Carolina law recognize validly performed marriages entered into in another state¹. For gay and lesbian couples, this means that state recognition as a married couple is not an option.

Default Property Distribution

Since in North Carolina, same sex marriages are not recognized, a surviving partner of a same sex marriage or an unmarried partner in a relationship cannot stand to receive personal or real property left by the deceased unless legally stated in a properly executed Last Will and Testament. This is because in North Carolina, the intestacy law provides that if a person is survived by no spouse, and no children, then his or her property will pass to surviving parents, or if no surviving parents, then to his or her siblings. A deceased person's lineal relatives (children or parents) stand first in line for property inheritance. By providing a properly executed Last Will and Testament, you are helping to ensure that your partner will receive the property you intended. If you have any reason to believe that your parents or siblings would be hostile to the idea of leaving all property to your unmarried partner, it is advisable to leave a "why left out" explanation in your Will.

Appointment of an Administrator

In the same way that an unmarried partner is not recognized to receive the property of their deceased partner, the North Carolina intestacy law makes almost no provision for an unmarried partner to oversee the administration of his or her deceased partner's estate. Chapter 28A of the General Statutes provides that a decedent's spouse, then lineal relatives, then siblings may apply for appointment as Administrator of an intestate estate. Creditors of the decedent stand in line ahead of an unrelated "person of good character residing in the county who applies therefore,"² such as an unmarried partner of the decedent. Again, the only way to ensure that your unmarried partner may act as your Executor is to name him or her as such in a properly executed Last Will and Testament.

Appointment of a Guardian

Similarly, if you are the only living biological or adoptive parent of a child and your partner is not also an adoptive parent of that child, then the decision of who will become the child's legal guardian is left to the decision of the Clerk of Court in the county where you live. However, if your unmarried partner is named the legal guardian of your child in a properly executed Last Will and Testament, then the Clerk will give "substantial weight to such recommendation" of the decedent in making that decision.³

Authorized Final Arrangements

North Carolina has default rules for who may be reimbursed for the costs of a decedent's final arrangements. If an unmarried person dies without leaving written authorization in a properly executed Will or Health Care Power of Attorney directing who may make such arrangements, then the decedent's lineal relatives and siblings have priority over all unrelated individuals.⁴ This means that while an unmarried partner may be able to direct the cremation or burial of the deceased, the deceased person's family can properly refuse to reimburse the partner for such unauthorized funeral expenses from the decedent's estate. The North Carolina Court of Appeals has held that a provision in one's Will for final arrangements will take precedence over the wishes of the deceased's family.⁵ The best way to authorize your unmarried partner to carry out your final arrangements is to name them in a properly executed Health Care Power of Attorney.

The North Carolina estate planning attorneys of Brady Morton, PLLC are experienced in helping non-traditional couples and families develop secure Last Will and Testaments to help ensure that their wishes are carried out as intended. If you have any questions about your existing estate planning or if you have not developed your estate plans, then please contact the law firm of Brady Morton, PLLC today for a free consultation. We can be reached by phone at 919-782-3500 or through our online form. Please contact us today so that we can help you best plan for your families future.