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Wednesday, June 30, 2021

What Is the Elective Share?

Have you ever heard of the elective share? While many have not, it can have significant impact on a person’s estate plan. Established in state legislatures across the U.S., elective share laws work to protect the right of a surviving spouse to inherit. Here, we will discuss the elective share in more detail.

What Is the Elective Share?

The elective share, essentially, ensures that a surviving spouse has the right to inherit a certain percentage of a deceased spouse’s estate. This is true regardless of whether the deceased spouse intentionally or unintentionally disinherited the surviving spouse. Even if the will explicitly states that the surviving spouse should not inherit anything or should inherit a nominal amount, the elective share may be taken.

In South Carolina, a surviving spouse is entitled to claim one-third of the deceased’ spouse probate estate as the elective share. North Carolina, on the other hand, has an elective share law that operates a bit differently as it is not a fixed rate of one-third of the deceased spouse’s probate estate. Instead, North Carolina’s elective share law provides for an elective share that increases depending on the length of the marriage. If the spouses were married for less than 5 years, then the surviving spouse is entitled to an elective share of 15% of the net assets. This increases to 25% if the spouses were married more than 5 years, but less than 10 years. This increases further still to 33% if the spouses were married for more than 10 years, but less than 15 years. It caps off at 50% if the couple was married for 15 years or more.

You see, the elective share dictates that a surviving spouse has the right to a certain percentage of the assets held in the estate of the deceased spouse. This means that a spouse will usually elect to take this share if he or she is completely disinherited or if the deceased spouse left an inheritance to the surviving spouse that is smaller than the elective share amount. It is also important to note that the elective share represents a minimum inheritance for a surviving spouse. You are always welcome to leave your spouse a larger amount.

There can be a number of reasons why a spouse would want to disinherit a spouse or leave him or her less than the elective share amount. This can be especially true when a spouse has been married multiple times and has children from previous relationships. In these cases, a spouse may want to leave the surviving spouse less in order to leave the children with more.

Should you want to plan to avoid the elective share coming into play, there is the possibility of waiving the right to an elective share, but proper plans must be put in place to accomplish this. A contract, such as a prenuptial or postnuptial agreement, can be used to effectively have the elective share right waived. Trusts can also be employed in order to circumvent the elective share.

Estate Planning Attorney

For a strong estate plan that works to protect your goals for yourself, your loved ones, and your future, Monk Law is here for you. Contact Monk Law today.


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