The Elective Share

Virtually every state has enacted statutes designed to protect a surviving spouse from disinheritance, commonly called elective share statutes.  Take the following factual scenario as an illustration:

Suppose that John executes a valid will.  He later meets and marries Jane.  John never updates his prior will and that will did not name Jane as a beneficiary, as he did not know her when he executed his prior will.  John dies and, because of not having updated his estate plan, his wife is not listed as a beneficiary.  What shall she do?

In North Carolina, a surviving spouse may lay claim to an elective share, a statutorily defined share of the decedent’s estate, in lieu of taking under their deceased spouse’s will.  Under North Carolina’s elective share statute, a surviving spouse’s elective share is equal to the surviving spouse’s applicable share of the decedent’s total net assets minus the value of net property passing to the surviving spouse.  

The applicable share of the Total Net Assets is as follows:

(1) If the surviving spouse was married to the decedent for less than five years, fifteen percent (15%) of the Total Net Assets.

(2) If the surviving spouse was married to the decedent for at least five years but less than 10 years, twenty-five percent (25%) of the Total Net Assets.

(3) If the surviving spouse was married to the decedent for at least 10 years but less than 15 years, thirty-three percent (33%) of the Total Net Assets.

(4) If the surviving spouse was married to the decedent for 15 years or more, fifty percent (50%) of the Total Net Assets.

​Navigating the elective share statute can be a difficult and complicated process.  If you have any questions regarding this or other related estate administration issues, the attorneys at Harvell and Collins would be happy to assist you.