Spousal Elective Shares in North Carolina
In North Carolina, absent a valid prenuptial agreement with terms specific to inheritance rights, a spousal waiver of their inheritance rights (as to some or all of the Decedent’s assets), or a renunciation by the spouse (again, as to some or all of the Decedent’s assets), a spouse cannot be completely disinherited.
How is the Elective Share Calculated?
The amount of the Estate a potentially disinherited spouse receives is based on the duration of the marriage and can be from 15% for a marriage lasting less than five years to 50% for a marriage lasting more than 15 years.
The Elective Share takes into account ALL the Decedent’s assets. That is, the calculation of an Elective Share includes all assets under the probate jurisdiction of the Clerk of Court AND the assets listed above that are NOT part of an Estate Administration. If the surviving spouse received any assets from the Decedent, they are then deducted from the Elective Share.
The right to an Elective Share is just that … a right. It must be exercised while the surviving spouse is alive AND it must be filed and served within six (6) months of the Estate being opened and the Executor being issued Letters testamentary by the Clerk of Court.
Threshold requirements for exercising your Spousal Share right include:
Being able to prove the marriage
Being able to provide the marriage was intact when the Decedent died
The Decedent must have been a North Carolina domiciliary (resident) at the time of their death.
Spousal Year’s Allowance
A surviving spouse is entitled to a $60,000 allowance from the Decedent’s probate assets. The claim must be made within six (6) months of the Clerk of Court’s appointment of personal representative (whether an Executor or an Administrator). The allowance is shielded from creditor claims against the Estate.
The Fiduciary Litigation Group Approach: Strategy and Mediation
We recognize that the best outcome in trust litigation is often one that preserves family relationships.
As part of our strategic advocacy, we frequently utilize mediation to reach creative settlements that avoid the public nature of a trial. However, we built our reputation on being uncompromising in the face of injustice. If the other side refuses to act reasonably, our deep experience in North Carolina courts becomes your greatest asset.