What if a spouse would like to leave their property to
a person other than their current spouse?
A person may create a will that leaves none of their property to their spouse. However, the spouse, may dissent from or reject the provisions of the will and take a share of the property of the decedent’s estate that is authorized by statutes. This share is commonly referred to as a spouse’s elective share.
Pursuant to NCGS §30-3.1, only a surviving spouse may file a claim for an elective share. Additionally, the elective share petition must be filed in the spouse’s lifetime (and within six months of when letters of testamentary or letters of administration are issued by the Clerk of Court), by the spouse, or by the spouse’s attorney-in-fact.
Pursuant to §30-3.1(3f), the following are a few examples of the type of assets that will be included in the elective share formula: property held in a revocable trust, joint bank and brokerage accounts, one-half of tenancy by the entirety property, life insurance on the life of the decedent, retirement accounts, property transferred within one year of death, and annuities. This is not a complete list of the potential property that will be included, but rather examples of property that may be included in the calculation.
The share is calculated on the total net assets of the estate, rather than just the assets of the estate. Expenses that can reduce the amount of total net assets include reasonable funeral expenses, year’s allowances, costs of administration of an estate, valid claims against an estate, death taxes, etc…
To determine the amount of the elective share, there will be a hearing conducted by the Clerk of Court. Additionally, mediation can be ordered by the Clerk of Court pursuant to NCGS §30-3.4(d1).
The process of assigning a value to the assets of the estate as well as determine how much of each asset should be included can be a complex process.
In summary, a spouse may attempt to prohibit the surviving spouse from inheriting any assets of the estate, but the surviving spouse has certain rights as granted by the North Carolina General Statutes. As a result, a full disinheritance of a spouse is not possible if the spouse uses the elective share statutes.
--Guest post by Joshua G. Howell. Mr. Howell currently practices estate planning law with the King law offices.
--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation. Please contact him at (910) 772-1678.