Can You Disinherit a Spouse in North Carolina?
One of the primary benefits of advanced estate planning is that people have wide discretion over what happens to their own property and assets. That being said, there are some laws in place that govern an estate. You may be wondering: Can someone disinherit their spouse in North Carolina? The short answer is ‘no’—you generally cannot completely disinherit a spouse.
While a person can leave their marital partner out of their will, the surviving spouse may still be entitled to something called an “elective share.” In this article, our Charlotte estate planning lawyers explain the most important things to know about elective shares and the disinheritance of a spouse in North Carolina.What is an Elective Share in North Carolina?
Similar to many other U.S. states, North Carolina has a so-called ‘elective share’ statute in place. The purpose of this law is to prevent a person from completely disinheriting their spouse. Under NC General Statutes § 30-3.1, a surviving spouse is lawfully entitled to the following as their “elective share” of the estate:
- Married Less than Five Years: At least 15% of total assets.
- Married Between Five and 10 Years: At least 25% of total assets.
- Married Between 10 and 15 Years: At Least 33% of total assets.
- Married More than 15 Years: At least 50% of total assets.
In other words, the length of the marriage will determine the minimum amount of the decedent’s total assets that the spouse is entitled to receive under North Carolina law. If the structure of the decedent’s estate provided less than the guaranteed elective share to the spouse, then legal action can be taken by the surviving spouse to make a claim against the estate.Three Sources of Property/Assets Will be Considered
It is not always clear how much a surviving spouse actually received. Under North Carolina’s elective share statute, probate courts must consider three different sources of property/assets transfer. Specifically, a North Carolian court will look at:
- The Will: The probate court will need to determine the total value of property transferred by the will and what share (if any) of those assets went to the surviving spouse.
- Beneficiary Designations: The court will also consider non-probate assets. This includes all beneficiary designations, such as retirement accounts and life insurance policies.
- Joint Ownership: Finally, the court will also consider the assets that passed directly to the surviving spouse through joint ownership with a right of survivorship. For example, in most cases, the marital home passes directly to the surviving spouse outside of the probate process. The value of that asset will be considered when determining whether or not the surviving spouse received their proper elective share.
As noted above, a surviving spouse who believes that they were unlawfully disinherited in North Carolina has the right to make a claim against the estate for their guaranteed “elective share” of the property/assets. A surviving spouse must act promptly to make such a claim. As a general rule, the surviving spouse has six months from the date that the Letters of Administration were issued to claim an elective share. If they wait too long to take action, they probate the court can dismiss the case outright based on the statute of limitations.Elective Share Cases Can be Extremely Complicated
If you or your family member is currently involved in a probate dispute over the calculation of an ‘elective share,’ it is imperative that you seek immediate assistance from an experienced attorney. Spousal disinheritance cases are among the most complex types of probate disputes. A skilled North Carolina probate litigation attorney will answer your questions, explain your rights under state law, and take proactive steps to protect your financial interests and ensure that you receive your full and fair share of the inheritance.Call Our North Estate Estate and Probate Lawyers Today
At Arnold & Smith, PLLC, our North Carolina estate planning lawyers are committed to protecting the financial interests of our clients. If you have any questions about the disinheriting of a spouse or elective share claims, our legal team is available to help. Contact our firm now to arrange a completely confidential case evaluation. With an office in Charlotte, we are proud to provide high quality estate planning services throughout all of Mecklenburg County, including in Cornelius, Davidson, Mountain Island, Huntersville, Matthews, Mint Hill, Pineville, Stallings, and Weddington.