What is an elective share in North Carolina?
In North Carolina, a surviving spouse may elect to obtain a share of their deceased spouses’ estate. This is an intentional design of North Carolina legislature to protect spouses from being intentionally or unintentionally disinherited in a will. Elective shares protect surviving spouses if he or she is left with less than the statutory amount. What a spouse may elect is based on the length of the marriage. A prenuptial or separation agreement can change a surviving spouses’ right to claim an elective share. A surviving spouse is entitled to a percentage of the deceased spouses’ estate. The following percentages apply in North Carolina:
- If the couple was married for less than 5 years, the surviving spouse gets 15% of total net assets.
- 25% if the couple was married for more than 5 years, but less than 10 years.
- 33% if the couple was married for more than 10 years, but less than 15 years.
- 50% if the couple was married for 15 years or longer.
A surviving spouse must formally petition to elect their share within six months after the estate is opened. Surviving spouses who wish to use the elective share need to exercise their right in a timely manner, or they may be stuck with whatever they received in their spouse’s will. An estate planning attorney can make sure you preserve your right to receive an elective share.
An estate planning attorney can assist you in your objectives. Estate plans can provide that the surviving spouse receive more than an elective share amount. A common estate plan for larger estates, estates with family businesses, or real property is to provide via trust that the majority of your estate goes to your children with a smaller amount going to a surviving spouse. Finally, an estate can provide that a surviving spouse live in your home for the remainder of their life, with the title of the property passing to your children upon their death.
Our attorneys can help you plan for what happens after you’re gone, and we’re here to help you get a better sense of where you stand. We invite you to come in and talk with one of our attorneys in person during a consultation. Our number is 828-254-0499.