Cecil Harvell and Wes Collins discussed the elective share rights of surviving spouses in North Carolina, emphasizing the importance of understanding statutory rights and the implications of asset titling. They highlighted the short six-month deadline for filing an elective share claim and the complexities involved in determining the value of assets, particularly in cases of closely held businesses. The conversation underscored the necessity of proper estate planning to avoid adversarial situations and ensure that surviving spouses are adequately protected.

Statutory Support in North Carolina

• Discussion on the statutory rights of spouses in North Carolina, emphasizing that marriage triggers various laws that affect property and inheritance rights. [01:00]

• Example provided regarding property deeds: if a deed mentions both spouses, the property is presumed joint, leading to automatic transfer to the surviving spouse upon death. [02:00]

Marital Deductions and Elective Share

• The concept of the unlimited marital deduction allows spouses to inherit assets without tax implications. [03:00]

• North Carolina has an elective share statute that guarantees a surviving spouse a percentage of the deceased spouse's estate unless waived by a prenuptial or postnuptial agreement. [04:00]

Filing for Elective Share

• Wes Collins explains the procedure for filing an elective share claim, which must be done within six months of the personal representative's qualification. [05:00]

• Importance of proper filing to avoid defects that could invalidate the claim. [06:00]

Rights of Spouses

• Spouses have the right to transfer assets without penalty when dealing with Medicaid services. [07:00]

• The elective share claim is a right exclusive to the surviving spouse, regardless of the marriage's duration or circumstances. [08:00]

Mechanics of Elective Share

• After filing for the elective share, the personal representative must provide a breakdown of the estate's assets within a specified timeframe (approximately two months). [09:00]

• The elective share encompasses a broad range of assets, including those passing through wills, beneficiary designations, and joint accounts. [10:00]

Calculation of Elective Share

• The percentage of the elective share is based on the length of the marriage: 15% for marriages under 5 years, 25% for 5-10 years, 33% for 10-15 years, and 50% for marriages over 15 years. [11:00]

• Separation does not negate the right to claim an elective share unless a proper waiver exists. [12:00]

Impact of Wills on Elective Share

• A will cannot disinherit a spouse from claiming an elective share; the law protects the surviving spouse's rights regardless of the deceased's wishes. [13:00]

• Any assets received by the surviving spouse will offset the amount they are entitled to under the elective share. [14:00]

Adversarial Nature of Elective Share Claims

• The elective share process can become adversarial, particularly regarding transparency of asset disclosure and valuation disputes. [15:00]

• Valuation of closely held businesses can lead to contentious litigation due to subjective assessments of worth. [16:00]

Common Misunderstandings

• Many individuals mistakenly believe that all assets automatically pass to a surviving spouse upon death. This assumption is incorrect, and proper asset titling must be verified. [17:00]