Can I Disinherit my Spouse in North Carolina?

North Carolina’s laws provide a safeguard for surviving spouses. Under North Carolina law, a spouse can claim a certain share of your estate when you die, regardless of what your will says. This share is known as the “elective share.”

What is an Elective Share?

The elective share is a portion of the deceased spouse’s estate that the surviving spouse can claim. A surviving spouse can claim an elective share if doing so will result in them receiving a larger share of the deceased spouse’s assets than they would receive under the deceased spouse’s Will, or if there is no Will, under the North Carolina intestacy statutes.

The purpose of the elective share is to ensure that the surviving spouse has a minimum level of financial security. Couples can waive their right to claim an elective share in a valid prenuptial or post-nuptial agreement.

What Determines Elective Share Surviving Spouse Receives?

In North Carolina, the share a surviving spouse will inherit depends on the length their marriage. The surviving spouse can claim:

• 15% of total net assets if the marriage lasted less than five years;
• 25% of total net assets if the marriage lasted between five and ten years;
• 33% of total net assets if the the marriage lasted between ten and fifteen years;
• 50% of total net assets if the marriage lasted over 15 years.

“Total net assets” is defined as the deceased person’s total assets, less any allowances for dependents or claims against the estate. Total assets include probate estate plus certain non-probate assets. Non-probate assets include property such as bank accounts owned by the deceased spouse but payable on death to a beneficiary. It also includes property held in a trust that is revocable, and life insurance policies and retirement accounts over which the deceased spouse had the power to designate beneficiaries.

When is a Surviving Spouse Entitled to an Elective Share?

In determining whether a surviving spouse is can claim an elective share in North Carolina, the court will consider the “net property passing to the surviving spouse.” The “net property” is the value of the property and assets that the surviving spouse receives from the deceased spouse’s estate, either outright or in trust. This includes both probate and non-probate assets. It also includes any gifts or other transfers made by the deceased spouse during their lifetime for which the surviving spouse signs a statement acknowledging the gift.

The court will calculate the net property passing to the surviving spouse to determine what the surviving spouse has already received and whether the surviving spouse has a claim to any additional assets. If the net property passing to the surviving spouse is less than the elective share, the surviving spouse can claim the difference.

Claiming an Elective Share

A surviving spouse has six months from the date of the deceased spouse’s death to claim an elective share. A surviving spouse’s incapacity will not toll this time limit.

If the surviving spouse does not file a claim for the elective share within this time period, they will forfeit their right to claim the elective share and will not be able to seek a share of the deceased spouse’s estate at a later time.

It’s important to discuss your unique situation with an attorney as soon as possible to determine the best course of action in your unique situation.