When I work with married clients, many of them choose to create reciprocal estate plans, meaning the spouse’s individual estate plans effectively mirror each other. These estate plans usually call for the entire estate of one spouse to be transferred to the surviving spouse upon death. Sometimes, however, I work with an individual married client who does not want to leave his/her spouse any estate assets. As I explain to those clients, because North Carolina provides a surviving spouse with an “elective share,” it may not be possible to completely disinherit a spouse.
What Is an Elective Share?
The basic concept behind elective share, also referred to as “taking against the Will,” laws is to ensure that a surviving spouse is not left with nothing from the estate of a deceased spouse. Elective share laws also provide a surviving spouse with a “fair” share of the decedent’s estate in situations where the decedent only left the surviving spouse a token gift in his/her Last Will and Testament.
The North Carolina elective share law provides a surviving spouse with a percentage of the value of the decedent’s estate. Any direct gifts made to the surviving spouse in the decedent’s estate plan will be counted against the surviving spouse’s elective share. For example, if the decedent made a gift of $10,000 to a surviving spouse in his/her Will, but the surviving spouse was entitled to $50,000 pursuant to the elective share law, the surviving spouse would receive the $10,000 direct gift plus an additional $40,000 from the estate.
How Much Can a Spouse Claim Using the North Carolina Elective Share Law?
The value of the inheritance a surviving spouse is entitled to under the North Carolina elective share law depends on the value of the decedent’s estate and the length of the marriage. North Carolina’s elective share law provides a surviving spouse with a percentage of the decedent’s estate as follows:
- If the surviving spouse was married to the decedent for less than five years, the surviving spouse is entitled to 15 percent of the total net assets.
- If the surviving spouse was married to the decedent for more than five years but less than 10 years, the surviving spouse is entitled to 25 percent of the total net assets.
- If the surviving spouse was married to the decedent for more than 10 years but less than 15 years, the surviving spouse is entitled to 33 percent of the total net assets.
- If the surviving spouse was married to the decedent for 15 years or more, the surviving spouse is entitled to 50 percent of the total net assets.
The North Carolina elective share law is governed by North Carolina Gen. Stat. Section 30-3.1. The law defines “total net assets” as “The total assets reduced by year’s allowances to persons other than the surviving spouse and claims.”
Intestate Succession vs. Elective Share in North Carolina
If a spouse dies intestate (without a Will), a surviving spouse is also entitled to inherit under the North Carolina intestate succession laws. Often, however, a surviving spouse’s elective share is greater than his/her intestate succession share of the estate. One reason for this is that only probate assets are used for intestate succession purposes whereas the value of a decedent’s total estate is used when determining a surviving spouse’s elective share.
Contact a Chapel Hill Estate Planning Attorney
If you have additional questions or concerns about how the North Carolina spousal elective share works, please contact our Clarity Legal Group Estate Planning Attorney in Chapel Hill by calling us at 919-484-0012 or contact us online.
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