North Carolina law provides that, “Every surviving spouse . . . whether or not he has petitioned for an elective share, shall, . . . be entitled, out of the personal property of the deceased spouse, to an allowance of the value of ten thousand dollars ($10,000.00) for his support for one year after the death of the deceased spouse.” This provision for spousal allowance frequently permits a surviving spouse to claim such items as personal belongings, a vehicle, or small bank accounts before calculating the deceased spouse’s net assets of the estate that are to pass under the Will.

The Elective Share applies to those dying “testate,” or people who die with a valid Will. North Carolina’s Elective Share statute allows the surviving spouse to claim a certain amount of the deceased spouse’s total net assets, minus the value of any property already passing to the surviving spouse. The deceased spouse must have been a resident of North Carolina at the time of his or her death. The certain amount to be claimed depends upon whether the surviving spouse is a first or successive spouse of the decedent, and whether the decedent has any surviving children. For example, a surviving spouse of a childless decedent could elect to claim one-half of the decedent’s total net assets. Whereas, a surviving spouse of a decedent who had at least one child may claim only one-third of total net assets.

How is the Elective Share determined?

A person’s “total net assets” is the sum of his or her estate’s total assets minus funeral and administrative expenses, minus debts or claims of the estate, and minus the spousal allowance. “Net assets” includes all real and personal property owned by the decedent alone, one-half of the value of property jointly owned with one’s surviving spouse, the entire value of property held jointly with rights of survivorship with a party other than one’s spouse, pension or retirement plans which the decedent had the right to name a beneficiary (other than Social Security), and any other property properly includable in a person’s taxable estate as determined by the federal tax code.

For example, John Smith dies, leaving his wife, Mary Smith, as the surviving spouse. Mary Smith may first claim the following spousal allowance:

John’s used vehicle,          $4,000.00
John’s sole bank account, $1,500.00
John’s personal property,   $4,000.00
                              Total: $9,500.00 claimed spousal allowance.

Assuming John Smith’s net assets totaled $600,000.00, and he died without any children, Mary’s Elective Share is one-half, or $300,000.00 of John’s net assets. Mary’s Elective Share would then be reduced by property passing to her by reason of her survivorship:

Mary’s Elective Share,               $300,000.00
Minus ½ value of marital home,  $125,000.00
Minus Life Insurance to spouse, $100,000.00

Minus I.R.A. Beneficiary,           $ 60,000.00
Minus Spousal Allowance,         $ 9,500.00
Minus ½ of joint bank accounts, $ 5,500.00
                                      Total: $300,000.00

In this particular instance, Mary’s Elective Share would be satisfied by property passing to her by right of survivorship (jointly owned home and bank accounts), by beneficiary designation (life insurance, I.R.A.), and her spousal allowance. Therefore, if John’s Will left all of his property to his favorite nephew, then Mary will not have a petition for an Elective Share against property passing under John’s Will. Only in instances where property passing to the surviving spouse by right of survivorship is insufficient will a spouse then be able to file a claim for his or her Elective Share.

The spousal Elective Share may be waived in a properly executed pre-nuptial or post-nuptial agreement. For example, this allows parties entering into a second marriage to each waive their Elective Share against the other’s estate so that each may leave all of their property to their children of the first marriage.

What is the difference between Elective Share and Intestate Share?

When a person dies without a Will, or “intestate,” state law provides for a fixed share of that person’s estate to pass to the surviving spouse, depending again upon the decedent’s other surviving family members. The share of surviving spouse, where there is only one surviving child, would be entitled to one-half of the decedent’s real estate and the first Thirty thousand dollars ($30,000.00) of the decedent’s personal property. If, instead, the decedent is survived by no children, one parent, and a spouse, then the surviving spouse receives the first Fifty thousand dollars $50,000.00 of the decedent’s personal property.

The most notable difference between the Elective Share and the intestate share is that the Elective Share is just that – elective – whereas the intestate share is the property passing to a surviving spouse when a person dies without a Will. An estate will either have a potential Elective Share (testate) or a required minimum share (intestate) provided to the surviving spouse. The surviving spouse of a testate decedent has only six months from the date the court appoints an executor of the estate to timely file for Elective Share. Furthermore, the right to file for Elective Share must be initiated by the surviving spouse while he or she is still alive. This means that the executor or administrator of the estate of a surviving spouse who dies within the first six months of the first spouse’s death without first filing for Elective Share cannot file on behalf of his or her estate. However, if a surviving spouse timely files for his or her Elective Share, but dies prior to the award thereof, the surviving spouse’s estate may collect the award of the Elective Share.

How can marriage or divorce affect provisions for a spouse?

If a person executes a Will while he is single and he later enters a marriage without changing his Will, then his surviving wife may then petition for an Elective Share. All other provisions in the Will remain valid and are not revoked by his post-execution marriage.

If a person executes a Will while he is married and he later divorces from his wife as mentioned in his Will, the Will is not revoked entirely. Rather, unless expressly provided otherwise, the divorce or annulment will void any provisions in the Will in favor of the former spouse.

For example, John Smith makes his Will while married to Mary Smith, and his Will provides that all of his personal property should go to his spouse and that all of his real estate to go to his children. When John and Mary Smith subsequently divorce, the provision that Mary should receive all of John’s personal property will be rendered void, but the remaining provision for John’s children will remain valid. The divorce does not revoke John’s Will entirely; it only revokes what John provided to Mary.

Please remember that the complexity of state laws governing the Elective Share, including the deadline for filing. It is important to consult an attorney as soon as you think you may have a claim under the Elective Share statute. At Brady, Nordgren, Morton & Malone, PLLC, the initial consultation is free and Elective Share cases may be taken on a contingency or deferred fee basis.

Can a parent lawfully disinherit a child?

North Carolina state law has no minimal provisions for children of a person who dies testate. A person may lawfully leave her entire estate to her spouse in her Will and not provide for any of her children, whether or not they were alive at the time she executed her Will. A child who is born to or adopted by the testator after the Will is made may be able to claim his or her intestate share if the Will otherwise provided for children who were alive at that time and the Will does not expressly acknowledge the purposeful exclusion of after-born or after-adopted children.

Furthermore, North Carolina law no longer distinguishes among legitimate or illegitimate children for the purposes of inheritance rights from one’s mother. An illegitimate child’s father who has been adjudged to be the lawful father of the child or if the father has publicly acknowledged the child in a filed written instrument will be treated the same as a legitimate child of his or her father.

For more information about contesting a Will if you believe you were unintentionally or wrongfully excluded, please read more in our article on Will Contests.