Summary

An important recent decision from the North Carolina Court of Appeals clarifies spousal abandonment under N.C.G.S. § 31A-1(a)(3). The case involved a dispute between the decedent’s mother and his surviving wife over whether the wife was barred from inheriting due to abandonment.

Under North Carolina law, a surviving spouse loses the right to inherit intestate if they willfully and without just cause abandon and refuse to live with the other spouse and are not living with the other spouse at the time of death. In this case, the couple never established a marital home. The decedent lived in North Carolina, while his wife remained in Florida. The wife argued that she was willing to live with him if he became sober, but his ongoing substance abuse issues and abusive behavior made cohabitation impossible.

The decedent’s mother, seeking to bar the wife from inheriting, had the burden of proving abandonment. The court found that she failed to show the wife left without just cause. Given the evidence of the decedent’s behavior, the court ruled that the wife had justification for living apart and was therefore entitled to inherit.

Key Takeaways

The phrase “without just cause” carries significant weight in abandonment cases, particularly in situations involving spousal abuse or substance-related issues. This case highlights the difficulty of proving abandonment when a spouse’s separation is linked to the other spouse’s actions.

The court also clarified that a formal marital home is not required to establish abandonment. Even in marriages where spouses live apart, one spouse can still be deemed to have abandoned the other. However, proving abandonment requires more than mere separation. The party asserting abandonment has the burden of proof, and in this case, the mother failed to meet that burden. As a result, the wife remained eligible to inherit from the decedent’s estate.

Many attorneys misunderstand the fiduciary duties of a Guardian ad Litem (GAL) in incompetency proceedings in North Carolina, particularly regarding the balance between advocating for the respondent’s express wishes and their best interests.

A common misconception is that a GAL’s primary duty is to advocate for what they believe to be the respondent’s best interests, with a secondary duty to communicate the respondent’s express wishes. However, the statute suggests the opposite.

Under N.C.G.S. § 35A-1107, “the guardian ad litem shall present to the clerk the respondent’s express wishes at all relevant stages of the proceedings. The guardian ad litem also may make recommendations to the clerk concerning the respondent’s best interests if those interests differ from the respondent’s express wishes.” In other words, a GAL must convey the respondent’s express wishes but has the discretion to make recommendations about best interests.

This distinction creates challenges. A GAL may feel conflicted when the respondent’s wishes and their perceived best interests do not align. Another issue arises when a GAL chooses not to opine on best interests—exercising statutory discretion—only to be directly asked by the court.

It’s worth considering why the legislature structured the statute this way.

North Carolina has not yet adopted electronic wills. Senate Bill 307, introduced in March 2023, would have enacted the Uniform Electronic Wills Act in 2025 but died in committee. For now, wills in North Carolina still require physical signatures and witnesses.

Some states, like Colorado and North Dakota, have adopted the Uniform Act, while others, like Florida and Indiana, have created their own versions. Meanwhile, New Hampshire and Oregon explicitly prohibit electronic wills.

In Models of Electronic-Will Legislation, 56 Real Prop. Tr. & Est. L.J. 121 (2021), Adam J. Hirsch argues that states should experiment with different legislative models rather than adopt uniform laws. Given North Carolina’s move toward remote notarization, it seems likely the state will revisit electronic wills—but what approach it will take remains uncertain.