Elective Share Changes in North Carolina

The elective share law is designed for surviving spouses to provide them with a portion of their partner’s estate if what was bequeathed otherwise by Will, trust or other means did not meet the statutory minimum. A new law went into effect on October 1, 2013 that changes the percentage of an estate that an individual may claim from their deceased spouse’s estate. The previous statute provided up to one-third to a surviving spouse, now the maximum 50% share applies to surviving spouses whose marriages lasted longer than 15 years. Couples in North Carolina who have been married for a shorter time are entitled to significantly lower shares. The specific rates are outlined through the link above.

Wills that disinherit a spouse are generally not effective against a claim for Elective Share. Without a valid separation and property settlement agreement, prenuptial, or postnuptial agreement, a surviving spouse is entitled to at least their Elective Share. Assets placed in an irrevocable trust at least one year prior to death are also protected against the Elective Share.

The Elective Share often becomes an issue when a couple is separated, with no formal agreement limiting rights to each other’s estate, and one spouse dies.Provisions in a Will in favor of a spouse are revoked in divorce in North Carolina, however beneficiary designations are not revoked. Beneficiary designations for life insurance policies, as well as retirement accounts must be updated in order to prevent an ex-spouse—or a soon-to-be ex-spouse—from being legally entitled to these assets.

The media frenzy surrounding Elizabeth Edwards’ estrangement from North Carolina politician John Edwards provides one example. Elizabeth Edwards, a lawyer, updated her Will a week prior to her death, disinheriting her husband. However, John Edwards was still entitled to over a million dollars of her assets due to the state’s elective share legislation. If Elizabeth Edwards had passed away after October 1, 2013, John Edwards would have been entitled to an even greater elective share, according to the sliding scale set forth by the new legislation.

Calculate NC elective shares