North Carolina § 30-17 - When children entitled to an allowance.

§ 30-17. When children entitled to an allowance.

Whenever any parent dies survived by any child under the age of 18 years, including an adopted child or a child with whom the widow may be pregnant at the death of her husband, or a child who is less than 22 years of age and is a full-time student in any educational institution, or a child under 21 years of age who has been declared mentally incompetent, or a child under 21 years of age who is totally disabled, or any other person under the age of 18 years residing with the deceased parent at the time of death to whom the deceased parent or the surviving parent stood in loco parentis, every such child shall be entitled to receive an allowance of five thousand dollars ($5,000) for the child's support for the year next ensuing the death of the parent. The allowance shall be in addition to the child's share of the deceased parent's estate and shall be exempt from any lien by judgment or execution against the property of the deceased parent. The personal representative of the deceased parent shall, within one year after the parent's death, assign to every such child the allowance herein provided for; but if there is no personal representative or if the personal representative fails or refuses to act within 10 days after written application by a guardian or next friend on behalf of the child, the allowance may be assigned by a magistrate or clerk of court upon application. If the child resides with the surviving spouse of the deceased parent at the time the allowance is paid, the allowance shall be paid to the surviving spouse for the benefit of the child. If the child resides with its surviving parent who is other than the surviving spouse of the deceased parent, the allowance shall be paid to the surviving parent for the use and benefit of the child. The payment shall be made regardless of whether the deceased died testate or intestate or whether the surviving spouse petitioned for an elective share under Article 1A of Chapter 30 of the General Statutes. Provided, however, the allowance shall not be available to a deceased father's child born out of wedlock, unless the deceased father has recognized the paternity of the child by deed, will, or other paper-writing, or unless the deceased father died prior to or within one year after the birth of the child and is established to have been the father of the child by DNA testing. If the child does not reside with a surviving spouse or a surviving parent when the allowance is paid, the allowance shall be paid to the child's general guardian or guardian of the estate, if any, and if none, to the clerk of the superior court who shall receive and disburse the allowance for the benefit of the child. History (1889, c. 496; Rev., s. 3094; C.S., s. 4111; 1939, c. 396; 1953, c. 913, s. 2; 1961, c. 316, s. 2; c. 749, s. 3; 1969, c. 269; 1971, c. 528, s. 22; 1973, c. 1411; 1975, c. 259; 1981, c. 413, s. 2; c. 599, s. 7; 1995, c. 262, s. 5; 1997-310, s. 2; 2005-225, s. 1; 2011-344, s. 7; 2012-71, ss. 2(a), 3; 2013-198, s. 13; 2017-158, s. 5.) Editor's Note. - Session Laws 2012-71, s. 4, provides: "Section 2 of this act is effective when this act becomes law [June 26, 2012]. The remainder of this act becomes effective January 1, 2013, and applies to estates of persons dying on or after that date. Session Laws 2013-198, s. 28, made the amendment to this section by Session Laws 2013-198, s. 13, applicable to estates of persons dying on or after June 26, 2013. Effect of Amendments. - Session Laws 2012-71, s. 2(a), effective June 26, 2012, in the first paragraph, substituted "the parent" for "such parent" at the end of the first sentence, in the second sentence, substituted "The allowance" for "Such allowance", and substituted "the deceased parent" for "such parent", and in the third sentence, substituted "application" for "request", added "or next friend", substituted "the child" for "such child" and deleted "of said guardian" at the end; in the second paragraph, in the first and second sentences, substituted "surviving spouse of" for "widow of", and substituted "the allowance" for "such allowance", in the first sentence substituted "the surviving spouse for" for "said widow for", and substituted "the child" for "such child", in the second sentence substituted "the surviving" for "such surviving", and substituted "the child" for "such child, regardless of whether the deceased died testate or intestate or whether the widow dissented from the will"; added the third sentence, in the fourth sentence, substituted "the deceased" for "such deceased", "has" for "shall have", "the illegitimate" for "such illegitimate" and made a minor punctuation change, and in the fourth sentence, added "surviving spouse or a surviving", substituted "the allowance" for "same", and "of the child" for "of such child." Session Laws 2012-71, s. 3, effective January 1, 2013, substituted "five thousand dollars ($5,000)" for "two thousand dollars ($2,000)" in the first paragraph. For applicability, see editor's note. Session Laws 2013-198, s. 13, effective June 26, 2013, in the third sentence of the second paragraph, substituted "a deceased father's child born out of wedlock" for "an illegitimate child of a deceased father," deleted "illegitimate" preceding "child by deed", and added "or unless the deceased father died prior to or within one year after the birth of the child and is established to have been the father of the child by DNA testing". For applicability, see editor's note. Session Laws 2017-158, s. 5, effective July 21, 2017, substituted "child's general guardian or guardian of the estate" for "child's general guardian" near the middle of the last sentence. Legal Periodicals. - For background and effect of section, see 17 N.C.L. Rev. 357 (1939). For brief comment on the 1953 amendment, see 31 N.C.L. Rev. 376 (1953).