Does a NC Will override a legal Sep. Agreement when one spouse dies? I am the legal rep/ Executrix?
3 attorney answers
A close reading of the separation agreement and will would be necessary to provide the correct answer. If the separation agreement is worded to such effect that the parties waive their right to pursue claims for spousal allowance or elective share--which are provided by default under statute--that is likely enforceable. The separation agreement cannot "override" the statute, but it can allow the parties to it to waive claims they otherwise would have under law--in other words, agreeing not to pursue relief that they know they have a statutory right to pursue. As to the executor provision, that might not be as clear-cut. The person named as executor can always decline to serve in that capacity, in which case either a secondary executor could apply for Letters Testamentary, or if no such person is named in the will, the Clerk would need to appoint an alternate from a pool of qualified candidates. Like so many other legal matters, this is a situation in which a lawyer's textual analysis of the relevant documents, and applicable statutory provisions, is essential for obtaining the best and most reliable guidance. Best wishes to you this fall.
Chapter 31A dictates acts barring spouses from inheritance in the North Carolina General Statutes. Typically, when a spouse separates from the other, depending on those circumstances, the spouse will not be allowed to inherit the other's estate after he dies. Under NC, a spouse cannot disinherit the other because a spouse always has a spousal election. There needs to be more facts discussed with an attorney to give you an accurate answer. Feel free to call an attorney in Raleigh, North Carolina for a more in depth discussion on the legal issue you may have.
If in the separation agreement, it states that both parties will not inherit from one another, that agreement will control, as long as it is valid.