What Is North Carolina’s Elective Share?
North Carolina law gives a surviving spouse the right to claim what is called an elective share, regardless of what a will actually provides. Under North Carolina General Statute Section 30-3.1, a surviving spouse can claim a percentage of the deceased spouse’s total net assets, with the exact percentage depending on the length of the marriage. This right exists specifically to prevent a spouse from being left with little or nothing, even if the will or another estate planning document says otherwise.
The elective share must be claimed within a specific window after death, and a surviving spouse who misses that deadline generally forfeits the right to claim it at all, regardless of how unfair the will’s actual terms turn out to be.
An Asheville estate planning lawyer considers this elective share rule at every stage of drafting a plan, since a will that ignores it can end up producing a very different outcome than the person who wrote it intended.
How Is the Elective Share Percentage Calculated?
The percentage a surviving spouse can claim increases with the length of the marriage. A marriage of less than five years generally entitles a surviving spouse to a smaller share of the total net assets, while longer marriages entitle a spouse to progressively larger shares, reflecting the greater degree of shared life and shared assets built over time.
This calculation applies to the deceased spouse’s total net assets, which can include certain assets that pass outside of probate, not simply what is listed in the will itself, making the actual available share broader than many people expect. Life insurance proceeds, jointly held accounts, and certain trust assets can all factor into this calculation depending on how they were structured during the marriage.
Can a Spouse Waive This Right in Advance?
Yes, in certain circumstances. A prenuptial or postnuptial agreement can include a valid waiver of the elective share, provided both parties entered into the agreement voluntarily and with full financial disclosure. Courts scrutinize these waivers carefully, particularly when one spouse had significantly less legal or financial sophistication than the other at the time the agreement was signed, or when the agreement was presented without meaningful time to review it.
An agreement that appears entirely one-sided, or was signed without adequate time to review its terms, faces a real risk of being challenged and potentially set aside later.
What Steps Protect an Estate Plan From This Issue?
Building an estate plan that accounts for the elective share from the beginning avoids unpleasant surprises after death. Useful planning steps typically include:
- Discussing the elective share rule openly with both spouses during the planning process
- Considering a properly drafted marital trust that satisfies the elective share requirement
- Reviewing any prenuptial or postnuptial agreements for enforceability under current law
- Coordinating beneficiary designations with the overall estate plan
- Updating documents after marriage, divorce, or a significant change in assets
Addressing these issues proactively tends to produce a smoother outcome than leaving them for family members to sort out later.
Why Work With The McKinney Law Group?
Estate plans that overlook a surviving spouse’s statutory rights often create disputes that could have been avoided with proper planning. The McKinney Law Group Family & Divorce Lawyers builds estate plans that account for these protections from the outset, rather than leaving a family to sort out a conflict after a loved one has already passed away.
How Should You Start Protecting Your Estate?
Understanding how the elective share could affect your specific estate plan is an important step whether you are drafting a new will or reviewing an existing one. If you are working on an estate plan in the Asheville area, an Asheville estate planning lawyer can look over your documents with you and explain how this protection is likely to play into your family’s situation.