NC and SC Estate Planning and Elder Law Firm

The law recognizes that we come to depend on our spouses in a multitude of ways. We depend on our spouses for things like both emotional and financial support. If your spouse passes away and, for some reason or another, fails to leave you an inheritance or leave you a small inheritance, you may be able to recover an inheritance or a larger inheritance pursuant to North Carolina’s elective share law. The elective share law works to prevent a person from disinheriting his or her spouse.

What is an elective share?

Under North Carolina’s elective share law, when a person passes away, the surviving spouse is granted the opportunity to recover a certain minimum amount of assets from the deceased spouse. To qualify for the elective share, the surviving spouse must have received less than the statutory minimum amount with regards to either probated assets or non-probated assets. Also, the surviving share must make the claim for the elective share within six months after the letters testamentary or letters of administration have been issued.

Essentially, the elective share law requires that the surviving spouse receives a certain percentage of the deceased spouse’s assets, regardless of what the will or estate plan says. As stated above, the surviving spouse must have received less than the elective share amount as an inheritance in order to claim the elective share. The amount of the elective share depends entirely on the length of the marriage. 

In 2013, North Carolina made a big change to the statutory elective share calculation. The calculation used to take into consideration the marriages and children of the deceased spouse. The surviving spouse is entitled to the following percentage of the deceased spouse’s assets:

• If the couple was married for less than 5 years, the elective share is 15% of total net assets.
• If the couple was married for more than 5 years, but less than 10 years, the elective share is 25% of total net assets.
• If the couple was married for more than 10 years, but less than 15 years, the elective share is 33% of the total net assets.
• If the couple was married for 15 years or longer, the elective share is 50% of the total net assets.
  

It is important to note that the elective share represents the minimum a surviving spouse is entitled to. It is always possible to leave your spouse with an amount greater than the elective share. Furthermore, it is also possible for a spouse to waive his or her right to an elective share. This could be for several reasons, including wanting to leave more of the assets to children. The waiver can occur in a number of ways. A spouse can waive rights to an elective share in a prenuptial, postnuptial agreement, or other contracts.

Answering Your Important Estate Planning Questions