Elective shares serve as a crucial legal protection for surviving spouses, ensuring they receive a portion of their deceased spouse’s estate. On Let's Talk Legal, attorneys Cecil Harvell and Wes Collins explored the complexities of elective share claims, statutory protections, and the importance of estate planning.

Statutory Support for Surviving Spouses

In North Carolina, marriage triggers automatic legal protections related to inheritance. For instance, jointly titled property typically transfers to the surviving spouse without probate. However, assets solely in the deceased’s name may require formal legal claims to secure a surviving spouse’s share.

Marital Deductions and Elective Shares

The unlimited marital deduction allows spouses to inherit assets tax-free. However, North Carolina’s elective share statute guarantees a surviving spouse a legal right to a portion of the estate unless waived through a prenuptial or postnuptial agreement.

Filing for an Elective Share

A surviving spouse has six months from the personal representative's qualification to file an elective share claim. Proper filing is critical—any errors or omissions can invalidate the claim, potentially reducing the spouse’s legal rights.

Elective Share Calculation

The percentage of the estate a surviving spouse is entitled to depends on the length of the marriage:

• Less than 5 years → 15% of the estate
• 5 to 10 years → 25% of the estate
• 10 to 15 years → 33% of the estate
• More than 15 years → 50% of the estate

A separation does not necessarily eliminate elective share rights unless a legally valid waiver is in place.

Rights of Surviving Spouses

• A spouse can transfer assets without penalty when applying for Medicaid services.
• The elective share claim is an exclusive right of the surviving spouse, regardless of how long they were married.
• A will cannot disinherit a spouse from claiming their statutory share. However, any assets the spouse has already received may offset their final elective share amount.

Potential Challenges in Elective Share Claims

• Asset Valuation Disputes – The valuation of closely held businesses and other assets may become contentious, leading to litigation.
• Transparency Issues – Disputes may arise if asset disclosure is incomplete or if beneficiaries contest the surviving spouse’s claim.

Avoiding Legal Battles Through Estate Planning

Proper estate planning is essential for ensuring that a surviving spouse’s rights are protected while preventing disputes among beneficiaries. Consulting an experienced estate attorney can help structure assets in a way that honors the deceased’s wishes while complying with North Carolina’s elective share laws.