North Carolina’s elective share is designed to protect surviving spouses from being treated unfairly in their spouse’s will. Elective shares require that a certain percentage of the estate’s assets be left to the surviving spouse, even if the will or estate plan says otherwise.
Elective share laws only come into play when a spouse is left with less than the statutory amount. These amounts are based on the length of the marriage in North Carolina.
Elective Share Based on Length of Marriage
A surviving spouse is entitled to a percentage of their spouse’s estate. The following percentages apply in North Carolina:
- If the couple was married for less than 5 years, the surviving spouse gets 15% of total net assets.
- 25% if the couple was married for more than 5 years, but less than 10 years.
- 33% if the couple was married for more than 10 years, but less than 15 years.
- 50% if the couple was married for 15 years or longer.
Remember, the law only requires that your spouse receive at least this much of your estate. You always have the option of giving them more.
Waiving the Elective Share
However, sometimes people want to give their spouse less than the elective share. This typically involves very large estates or estates that involve real property or a family business. It can also come up when a person has been married multiple times and has children from a previous marriage.
One spouse may wish to leave the majority of their estate to their children while leaving a smaller amount to their surviving spouse. There are a few ways to accomplish this and sidestep the elective share statute.
First, your spouse can waive their right to the elective share in a contract. This can be done in a premarital agreement or in a postnuptial agreement.
You can also use trusts to accomplish this objective. One common scenario involves giving your spouse the right to live in your home for the rest of their life, but requiring that the title to the property be given to your children once your spouse passes away.
Surviving spouses who wish to use the elective share need to exercise their right on time, or they may be stuck with whatever they received in their spouse’s will. Contact an estate planning attorney to make sure you preserve your right to receive an elective share.
The lawyers at King Law< can help you plan for what happens after you’re gone, and we’re here to help you get a better sense of where you stand. We invite you to come in and talk with one of our attorneys in person during a consultation. Our number is 888-748-KING (5464).