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Can My Spouse Leave Me Out of Their Will?

Wills are powerful documents that allow a person to specify exactly how they want their assets dispersed after their death (the person making the will is known as the “testator.”) Without a will, the courts will by default distribute the person’s assets according to the state’s intestacy laws, which provide for the default allocation of property after the owner’s death (and are frequently contrary to the would-be testator’s wishes, hence the reason people create wills).

However, what if your spouse dies in the midst of a marital dispute and amends their will in retaliation? Or maybe the marriage has simply soured over the years and they take you out of their will in response. In these situations, or any other in which a spouse attempts to disinherit or otherwise not provide for their surviving spouse in a will, the so-called Elective Share law can be an option.

Elective Share laws are designed to prevent a married person from largely or completely disinheriting a surviving spouse in their will. If a surviving spouse does not receive the amount provided in the Elective Share laws from one of the three (3) following sources upon their spouse’s death, then they are entitled to make a claim for their applicable and proportional Elective Share amount:

  • The deceased spouse’s will;
  • The deceased spouse’s non-probate (non-will) assets such as life insurance, retirement accounts or annuities, for which the surviving spouse is named as beneficiary; or
  • As a joint owner with a right of survivorship of the deceased spouse’s bank accounts, investment accounts or real estate.

In other words, if the surviving spouse has already received the amount of the Elective Share to which they are entitled from one of the above sources, a claim for Elective Share is not relevant. This means that if the decedent attempted to disinherit their spouse, or just did not provide for them in the will, but the surviving spouse still received their entitled portion of the decedent’s estate through one of the two other means listed, the issue of an Elective Share claim is probably not applicable for the surviving spouse.

If, however, a surviving spouse does not receive their entitled portion from one of the three sources listed, then they may make a claim for their Elective Share. If the will only partially disinherited the surviving spouse, their Elective Share will be adjusted proportionally.

How is the Elective Share calculated?

A recent change to the North Carolina Elective Share law, beginning October 1, 2013, established a new formula for determining the amount of a surviving spouse’s Elective Share. The sole determining factor in the new calculation is the length of time that the couple was married.

The Elective Share rates in North Carolina are now as follows:

  • If the deceased and surviving spouses were married to each other for fewer than five (5) years, the surviving spouse will be entitled to 15 percent of the deceased spouse’s net assets.
  • If the spouses were married to each other for at least five (5) but fewer than 10 years, the surviving will be entitled to 25 percent of the deceased spouse’s net assets.
  • If the spouses were married to each other for at least 10 years but fewer than 15 years, the surviving spouse will be entitled to 33 percent of the deceased spouse’s net assets; and
  • If the spouses were married to each other for 15 years or more, the surviving spouse is entitled to 50 percent of the deceased spouse’s net assets.

A summary of these Elective Share rates is below for your reference.

Length of Marriage

Less than 5 years
At least 5 but less than 10 years
At least 10 but less than 15 years
15 years or more
% of Decedent’s Net Assets to Which Surviving Spouse is Entitled
15%
25%
33%
50%

How do I make a claim for my Elective Share?

The surviving spouse must make their Elective Share claim in the six (6) months immediately following the letters of administration in connection with the deceased’s will or intestate proceeding being issued. Unless the surviving spouse is mentally incapacitated throughout this period, North Carolina’s statute of limitations law will serve as a time bar to any claims that come after this point. An Elective Share claim must be made with the Clerk of Superior Court in the correct county, and there are very specific procedures that must be followed from that point forward to notify the decedent’s estate of the claim, provide proof of the decedent’s net assets to the clerk, and so forth.

Because of all the specific requirements in the law, an innocent mistake in the process of petitioning for your Elective Share can preclude you from receiving the amount to which you are entitled. For this reason it is important to have the assistance of an attorney experienced in estate law. If you are facing the distribution of assets after a loved one’s death, please contact the skilled estate law attorneys at Arnold & Smith, PLLC for a consultation. We provide aggressive civil and criminal defense representation for clients in Charlotte, Mecklenburg, Cabarrus, Union, Iredell, Gaston and the surrounding counties.