Understanding Elective Share Proceedings in North Carolina
In North Carolina, a surviving spouse has the right to receive a certain portion of their deceased spouse’s estate. This is referred to as an elective share because a surviving spouse may “elect” to receive their statutory share of the net assets that they would not have otherwise received under their deceased spouse’s will. The elective share laws of North Carolina were established to protect surviving spouses by preventing a spouse from disinheriting them or leaving them too little from their estate.
When Can You Exercise an Elective Share?
The need for a surviving spouse to exercise their right to an elective share can arise from either intentional or unintentional acts. It is common for some individuals to intentionally leave their spouse less than they might otherwise be entitled to due to having children from a prior marriage and desiring to leave the majority of their estate to them. In other circumstances, it may be an unintended event, such as not updating estate documents to reflect recent life events. Regardless of the reason, North Carolina’s elective share law gives surviving spouses rights to avoid being disinherited, unless that spouse has waived their rights in a premarital agreement or in a separation agreement.
How Much is an Elective Share?
In North Carolina, the elective share minimums that a surviving spouse is entitled to are calculated based on a certain percentage of the net total estate assets. The percentages are determined by the length of the marriage. The longer the marriage, the more is presumed to be contributed, and the higher the percentages are. The percentages used to determine the elective share in North Carolina are as follows:
- 15% for marriages less than 5 years
- 25% for marriages between 5 and 10 years
- 33% for marriages between 10 and 15 years
- 50% for marriages of 15 years or more
How to Claim an Elective Share
To claim an elective share, a formal petition needs to be filed by a surviving spouse in the estate proceeding. If there has not been an estate opened with the court, then a surviving spouse may need to open an estate in order to file a petition for an elective share. An elective share petition must be filed within six months after an executor or administrator has been appointed in the estate proceeding. Failure to make a formal request for an elective share within the six-month timeframe will result in a waiver of the elective share.
Filing a petition begins a formal proceeding involving the executor or administrator and other beneficiaries, often referred to as responsible persons. To ensure a surviving spouse receives their fair share of the net assets, it is important to ensure that all assets have been identified and properly valued. This may require some discovery strategies to investigate the estate and make sure all property has been included. If no agreement can be reached as to the value and/or distribution of property, it will become necessary to have a hearing on the issues in dispute.
Our attorneys at Hopper Cummings have helped many individuals in the estate administration process in Chatham County. We provide sound guidance to all involved, including surviving spouses, to ensure the estate is handled fairly and correctly. Regardless of the size of the estate involved, from modest to complex, we are well-versed in all aspects of estate administration, including elective share proceedings. For a confidential consultation, contact us today at 919-533-4115, or complete our online form
