Elective Share Proceedings in North Carolina

Understanding Elective Share Laws

In North Carolina, surviving spouses are protected from being treated unfairly under the state’s elective share laws. These laws allow a surviving spouse to “elect” to take a statutory portion of the deceased spouse’s estate if the will does not provide an adequate share. This elective share is an alternative to the amount provided under the spouse’s will. However, claiming an elective share is not automatic and must be requested within a specific timeframe. Failure to follow the procedures can result in losing the right to the elective share.

Elective Share Percentages in North Carolina

The elective share laws in North Carolina, under N.C.G.S. Section 30-3.1, apply when a surviving spouse is left with less than the statutory amount. The amount is calculated based on the length of the marriage and the net total assets of the estate as follows:

• Marriages less than 5 years: The surviving spouse is entitled to 15% of the net total assets of the estate.
• Marriages between 5 and 10 years: The surviving spouse is entitled to 25% of the net total assets.
• Marriages between 10 and 15 years: The surviving spouse is entitled to 33% of the net total assets.
• Marriages longer than 15 years: The surviving spouse is entitled to 50% of the net total assets.

Filing for an Elective Share in North Carolina

To exercise the right to an elective share, a proceeding must be filed in the probate court of the county where the deceased resided. The deadline for filing is six months after the probate court issues letters of administration. For uncontested estates, filing a petition for an elective share is sufficient. In contested cases, additional steps include having a summons issued and serving interested parties. Failure to file within the six-month period results in a waiver of the elective share.

Determining the Elective Share Amount

Once a claim is filed, the court will set a hearing to determine the value of the estate and calculate the elective share. The elective share amount is based on the net total assets of the estate and the length of the marriage. This amount ensures that the surviving spouse receives a minimum share of the estate if the will does not adequately provide for them, protecting them from being disinherited or receiving an insufficient portion.

Calculating the net total assets includes not only the assets being probated but also certain other property in which the deceased had an interest. This process can be complex and may involve disputes over asset valuations. Key assets considered include:

• Life insurance death benefits and retirement accounts under the deceased’s control.
• All banking accounts, including jointly owned accounts.
• Any assets held in trust over which the deceased had a general power of appointment, including trusts created by others.

Elective Share Waiver

In some cases, the right to an elective share can be waived. This waiver can be included in prenuptial or postnuptial agreements and through trusts and other estate planning mechanisms. Common reasons for waiving an elective share include estate planning for large estates, family businesses, or ensuring children from prior relationships receive the majority of the estate. Additionally, under North Carolina law, a surviving spouse may forfeit the right to an elective share due to abandonment or other misconduct.

Seeking Legal Guidance

If you believe you may be entitled to an elective share or have questions about the process, the attorneys at Crosswhite Law are well-versed in estate laws and can provide sound guidance to administrators, executors, beneficiaries, and other interested parties navigating North Carolina probate actions. For assistance or to schedule a consultation, contact our office at (704) 873-7233.