Estate planning is essential for ensuring that assets are distributed according to one's wishes while protecting the rights of surviving spouses. On Let's Talk Legal, attorneys Cecil Harvell and Wes Collins discussed the complexities of elective shares in North Carolina and the importance of durable powers of attorney in estate management.

What Is an Elective Share?

An elective share is a statutory right that allows a surviving spouse to claim a portion of their deceased spouse's estate. This claim must be filed within six months of the personal representative's qualification. If the deadline is missed, the right to an elective share is waived.

Challenges with Elective Shares

Elective share claims can be particularly complex when the surviving spouse is unable to manage their legal affairs due to age or infirmity. In such cases, an agent under a durable power of attorney may need to act on their behalf, which can introduce additional estate planning challenges.

Couples in second or subsequent marriages often face unique complications, especially when children from previous marriages are involved. Careful planning is necessary to ensure the elective share does not disrupt intended asset distribution.

Trusts and Asset Management for Elective Shares

One way to manage the impact of an elective share is by establishing an elective share trust. This trust can:

• Provide financial security for the surviving spouse.

• Protect the interests of children from previous marriages.

• Ensure that asset distribution aligns with the deceased's wishes.

The trust specifies how assets will be handled and distributed upon the surviving spouse's death, offering clarity and security for all parties involved.

Calculation and Payment of Elective Shares

The elective share is calculated based on the total value of the estate and non-probate assets at the time of death. If the estate lacks sufficient liquid assets to fulfill the claim, the court may order asset sales or assign alternative assets to meet the requirement.

Legal Process and Appeals

The elective share process is overseen by the clerk of court, who has the authority to enter orders and handle appeals. The superior court may review these decisions to ensure compliance with legal standards. Litigation may arise when children from previous marriages contest a surviving spouse's elective share claim.

The Role of Durable Power of Attorney in Elective Share Claims

A durable power of attorney (DPOA) allows a trusted individual to manage financial and legal matters if a person becomes incapacitated. This is particularly important in elective share cases where:

• The surviving spouse cannot file the claim themselves.

• Estate assets need management to cover elective share obligations.

• Disputes arise regarding the distribution of assets.

Why Legal Consultation Is Essential

Significant life events—such as remarriage or the death of a spouse—necessitate legal consultation. Proper estate planning ensures:

• Compliance with statutory deadlines.

• Asset distribution that aligns with the deceased’s wishes.

• Avoidance of unnecessary legal disputes and costs.

Plan Ahead for a Secure Future

Proactive estate planning is crucial for preventing legal battles and financial hardships. By consulting an attorney, individuals can navigate elective shares, powers of attorney, and trusts to ensure that their estate plan reflects their wishes while protecting their family’s future.