Your Spouse Cannot Cut You Out Of The Estate In North Carolina

Someone can write “my spouse gets nothing” into a will, but North Carolina law may have the final say. We sit down to unpack the North Carolina elective share, the statute that helps protect surviving spouses from being disinherited unless they have signed a valid written waiver. If you are dealing with estate planning, probate, or a tough family situation after a death, this conversation clarifies what rights may exist even when the paperwork looks final. 

We walk through how the elective share amount is tied to the length of the marriage, with percentage tiers that rise over time. We also explain why the term “net estate” matters so much, because the calculation can reach beyond probate assets and may include items like life insurance and payable on death designations. That detail is often the moment people realize their assumptions about “keeping things out of the estate” do not always hold up under North Carolina elective share rules. 

We also talk about the marital home, where the stakes feel immediate. If a surviving spouse is not on the deed, the shock can be real, and we discuss the option to elect a life estate in the marital home instead of taking the percentage share. Finally, we highlight the practical urgency: the surviving spouse generally has only six months from the date the estate is opened to file the elective share, a short window during an already stressful time. 

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Transcript

0:02

Hello and welcome to our Elder Law report. I'm Jane Deerwester with McIntyre Elder Law, based in our Hendersonville office,

Welcome And Topic Overview

0:11

and I am happy to introduce and be joined by our attorney Anthony Figueroa in Shelby. Hi, Anthony. Hey, how are you doing? Doing well. Today we are here to talk about the North Carolina elective share. This is a concept and a statute here in North Carolina that protects spouses from being disinherited in North Carolina. Our overarching rule is that spouses in North Carolina cannot be disinherited unless they specifically waive their right to receive an elective share in writing, for example, in a premarital agreement or some other kind of written waiver of the elective share. So even if a person would write into their will or their estate plan that their spouse receives nothing, this law is in effect to preserve rights for the surviving spouse to get something out of the estate. And Anthony's going to talk about what that something is. It depends upon the length of the marriage. And so, Anthony, I'll let you kind of go over how the length of the marriage

Elective Share Percent By Marriage Length

1:27

impacts the amount of the elective share. Yeah, it's a pretty interesting calculation that they use. So they the when they created this law, they were you can see you can see that their goal was to make sure that if they're always just brand newly married, um, that they're not just automatically be entitled to a 100% share of somebody's estate. So they've broken it up into year terms. So it goes by five years, between five to ten years, ten to fifteen years, and if you're married for more than 15 years. So and each group or or um range of years provides a different percentage share of the estate. So for instance, if you were married to somebody for less than five years, the surviving spouse would be entitled to a 15% um portion of the net estate. And then if it was between five to 10 years, the entitlement will increase to 25%, 10 to 15, 33%, and then anything greater than 15 years, you're gonna be entitled to 50% of the entire net estate. Yeah, and that's so important that you're saying net estate, because it's not just estate assets that would pass through probate,

What Counts In The Net Estate

2:34

but it's the net estate. So anything and everything, including life insurance policies, um, payable on death designations on all different kinds of financial accounts. So it the statute casts a very broad net, really, to give the spouse the benefit of that based on the length of the marriage, which I think makes it very uh practical and useful, particularly for that surviving spouse that may be facing uh uh an attempt to be disinherited. Uh, I think also something important, particularly for married couples, uh, centers around the marital home. So

Life Estate Option In The Marital Home

3:18

the uh spousal allowance, or pardon me, the uh elective share allows the surviving spouse to elect a life estate in the marital home rather than getting that percentage that Anthony talked about of the net estate. So sometimes a person would rather just stay in their home because if they weren't on title to the marital home, if their name isn't on the deed, they don't own the property when their spouse dies. They actually end up owning only a third of the property with other heirs. And most people do not know this going in, and it comes as a very unwelcome piece of information that we have to share with them after their spouse passes away. Um, another thing is there's a limited time to file the elective share, right? So the spouse really has to be heads up, and while they're experiencing

Six Month Deadline To File

4:22

grief and losing a spouse, they also have to be mindful of that time frame. And what what is that again, Anthony? The time frame for filing. Yeah, so they have so the surviving spouse has six months from the date of the deceased spouse state being opened. So it's a relatively short period of time. Um, and something to consider you know, people want to know this going into this kind of situation, um, because of the fact that with that short period, there's so much going on with the estate in that first six months um that this is just another thing you had to add on to it, but something that you have to keep in the back of your mind. Yeah, it's another reason that if your spouse passes or a loved one passes, that it is a good idea to go in and speak with an attorney,

Get Legal Guidance And Free Consult

5:06

like any of the attorneys in our offices located in Hendersonville, Shelby, and Charlotte, to just understand what your rights are. A good attorney is going to be able to listen to your situation and let you know what benefits and risks you may have going into dealing with the estate. So uh thank you so much for joining me today and talking about this topic, Anthony. And if any of y'all out there are listening to this, we offer a free consultation for you to come in to any one of our three offices or meet with us virtually. You can find that online at McIntyre Elderlaw. It's mcelderlaw.com slash scheduling to schedule your own appointment, or please give us a call to schedule an appointment at eight eight eight nine nine nine sixty six hundred. We look forward to seeing y'all, helping y'all out with elective share issues, really anything in the realm of elder law and estate planning. Thanks, Anthony. Thank you.