Pursuant to N.C. Gen. Stat. § 30-15 (2005), a surviving
spouse is entitled, out of the personal property of the deceased
spouse, to an allowance of the value of ten thousand dollars ($
10,000) for his support for one year after the death of the
deceased spouse. Appellee applied for and was granted a year's
spousal allowance on 24 November 2004. On 15 August 2005 appellant
filed a motion to set aside the assignment of a year's allowance to
appellee. Her motion was denied by the Assistant Clerk, whose
order was upheld by the trial court. On appeal, appellant argues
that appellee was improperly awarded a year's allowance. We
conclude that appellant did not preserve this issue for our review.
Under N.C. Gen. Stat. § 30-23 (2005), any creditor, legatee
or heir of the deceased, may appeal from the finding of the
magistrate or clerk of court to the superior court of the county,
and, within 10 days after the assignment
, cite the adverse party to
appear before such court on a certain day[.] (emphasis added).
In the instant case, appellant did not file an appeal, and waited
more than eight months before filing her motion to set aside the
assignment of the year's allowance. We conclude that appellant
failed to appeal within the required time.
Appellant asserts that she did not appeal because she had no
notice of the assignment. She concedes that no notice is required
under the statute, but argues that inasmuch as notice is required
with regards to other aspects of estate administration, that noticeshould also be required in when the clerk grants a spouse's year's
allowance. To the contrary, the presence of statutory notice
requirements for other
estate actions indicates that the
did not impose a notice requirement with
respect to the statutory right to a year's allowance. This
assignment of error is overruled.
 Under N.C. Gen. Stat. § 30-3.1 (2005), a surviving spouse
has a right to claim an 'elective share', which means an amount
equal to (i) the applicable share of the Total Net Assets, as
defined in G.S. 30-3.2(4), less (ii) the value of Property Passing
to Surviving Spouse, as defined in G.S. 30-3.3(a). Appellee
applied for and was granted the right to take an elective share of
decedent's estate. Appellant argues that the trial court erred in
affirming the clerk's order, on the grounds that the terms of the
separation agreement preclude appellee from exercising the right to
dissent from decedent's will. We disagree.
The separation agreement included the following provision:
4. Release of Property and Estate Rights. Except
as otherwise provided herein, each party
hereby waives . . .all rights [to] . . .
property or estate of the other, arising by
reason of their marital relationship . . .
including, but not limited to, dower, curtesy
[sic], statutory allowance, . . . any right of
election, right to take against the last will
. . . of the other or to dissent therefrom,
[and] right to act as administrator or
executor of the estate of [the other.] . . .
In addition, . . . each party waives . . . anyright to insurance proceeds payable by reason
of the death or disability of the other[.] . .
It is well settled in our law that a separation agreement
between husband and wife is terminated for every purpose insofar as
it remains executory upon their resumption of the marital
relation. In re Estate of Adamee
, 291 N.C. 386, 391, 230 S.E.2d
541, 545 (1976) (citations omitted). Thus, the clerk and trial
court were presented with two issues: (1) did decedent and appellee
reconcile and resume marital relations; and (2) if so, was the
provision waiving inheritance rights executory at the time of
Under N.C. Gen. Stat. § 52-10.2 (2005), 'Resumption of
marital relations' shall be defined as voluntary renewal of the
husband and wife relationship, as shown by the totality of the
circumstances. . . . In the instant case, appellee executed a
sworn affidavit wherein he stated, in relevant part, the following:
7. At no time were we ever divorced from each
other. We resumed living together as husband
and wife by October 1, 2002. . . .
8. Subsequent to resuming living together as
husband and wife by October 1, 2002, Josephine
and I held ourselves out to our families and
to the public as being husband and wife . . .
[and] live[d] together happily as husband and
9. Between October 1, 2002 and my wife's death on
March 18,2004, my wife, [decedent] and I:
a) purchased furniture together[.] . . .
b) maintained a joint checking account[.]
c) filed income tax returns together[.] . . .
10. Between October 1, 2002 and my wife's death on
March 18, 2004, my wife: a) maintained and used a military i.d. card
issued to her based on my veteran status[.] .
b) listed me as her spouse on all visit to
c) had me named as the responsible party for
payment for her medical care[.] . . .
d) listed me as her next of kin upon all
11. On July 20, 2003, [decedent] executed and
delivered a 'Designation of Beneficiary' form
for her Federal Employees Group Life Insurance
Program naming me as her husband and naming me
as the primary beneficiary of the life
insurance policy. . . ..
12. In October, 2003, I and my wife Josephine Hood
Edwards purchased a residence [in] . . .
Fayetteville, N.C. . . . Josephine and I, as
husband and wife, were named as grantees in
the deed, and we both signed the deed of trust
securing the mortgage on this property. . . .
We conclude that this uncontradicted affidavit easily supports the
clerk's finding and conclusion that, after executing the separation
agreement, decedent and appellee reconciled and resumed marital
We conclude further that the waiver provision was executory
when appellee and decedent reconciled the day after filing the
separation agreement. An 'executory contract' is one in which a
party binds himself to do or not to do a particular thing in the
. Whitt v. Whitt
, 32 N.C. App. 125, 129-30, 230 S.E.2d 793,
796 (1977). In In re Estate of Tucci
, 94 N.C. App. 428, 380 S.E.2d
782 (1989), the clerk concluded:
[T]he right of the surviving spouse to dissent
from the will of testatrix arose as of the
date of her death, and a waiver of that right
necessarily required the surviving spouse not
to do a particular thing in the future and
was, therefore, an executory provision.
. at 431, 380 S.E.2d at 784. In Tucci
, this Court ultimately
determined that, because the separation agreement at issue
expressly stated that it was to remain in effect if the parties
reconciled, that it is immaterial whether Mr. Tucci's release was
executory at the time the Tuccis reconciled. Id
. at 437, 380
S.E.2d at 787.
The executory nature of a waiver of inheritance rights was
addressed by the North Carolina Supreme Court in In re Estate of
, 291 N.C. 386, 230 S.E.2d 541. As noted above, Adamee
referenced the established rule that reconciliation would rescind
executory provisions in a separation agreement. In Adamee
, as in
the instant case, the decedent and appellee executed a separation
agreement wherein they waived the right to share in each other's
estate. Thereafter, also as in the instant case, decedent and
appellee reconciled and lived together until decedent's death. The
clerk issued an order stating that the reconciliation had nullified
the separation agreement, and allowing appellee to administer and
inherit from decedent's estate. Id
. The Adamee
appealed to Superior Court and filed a motion for summary judgment.
The trial court refused to uphold the clerk's order, on the grounds
that there were issues of material fact on the issue of whether
decedent and appellee had reconciled. This Court upheld the trial
court's order. The North Carolina Supreme Court reversed:
[A]fter the execution of the separation
agreement . . . Mrs. Adamee returned to the
marital home [and] . . . until [Mr.] Adamee's
death . . . he and Mrs. Adamee lived together
continuously in their marital residence.
Therefore, no issue arose . . . as to theirresumption of marital relations. As a matter
of law they had done so. It follows that [the
trial court] erred in refusing to affirm the
clerk's order that Mrs. Adamee is entitled to
qualify as administratrix of the estate of
Adamee and share in his estate as his widow
without prejudice by reason of the separation
agreement and consent judgment[.]
. at 393, 230 S.E.2d at 546.
Later cases have not overruled Adamee's
reconciliation of a married couple serves to rescind and nullify a
separation agreement's waiver of estate rights. Nor has appellant
directed our attention to any precedent holding that such waivers
executory. Moreover, the separation agreement at issue
herein includes a provision that tracks the common law rule
regarding the effect of reconciliation on executory provisions in
14. Reconciliation. In the event the Husband and
Wife end their separation by reconciliation
and resumption of marital cohabitation, the
executory provisions of this agreement shall
be thereby cancelled and rescinded, but all
provisions hereof which have been executed or
partially executed at that time, shall, to the
extent of complete or partial performance,
continue in full force and effect unless and
until they are cancelled or rescinded in a
written agreement duly executed by both
Husband and Wife. . . . .
We conclude that the waiver of inheritance rights was rescinded and
canceled by the reconciliation of decedent and appellee, and that
the trial court's order must be
Judges BRYANT and STEELMAN concurs.
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