When a married Decedent dies, his or her surviving spouse has a right to claim a portion of the Estate. It is referred to as the “Elective Share” because the surviving spouse must elect to claim such share by proper filing of a claim for elective share within six months of the Decedent’s death.
Effective October 1, 2013, the Elective Share amount in North Carolina is based upon the length of the marriage:
- If the surviving spouse was married to the Decedent for less than 5 years, the elective share amount is 15%;
- If the surviving spouse was married to the Decedent for at least 5 years, but less than 10 years, the elective share amount is 25%;
- If the surviving spouse was married to the Decedent for at least 10 years, but less than 15 years, the elective share amount is 33%;
- If the surviving spouse was married to the Decedent for 15 years or more, the elective share amount is 50%.
The Elective Share laws also include very specific definitions for determining which assets count as part of the “Estate” for purposes of the calculation.
If you are a surviving spouse who is contemplating filing for an Elective Share, or if you are an Executor facing such a claim by a surviving spouse, we strongly encourage you to hire legal assistance.
Losing a loved one is hard. The days and weeks after a loss are often fraught with grief, questions, and unfortunately, family complications. It’s a terrible time to try to think through a legal process clearly. It’s often a challenge just to know where to start. Maybe you’re not even sure what questions to ask and whom to ask. How do you know you’re getting good advice and doing it right? You could probably use some help. Our Understanding Estate Administration guide can help. This guide will give you an overview of the probate and estate administration process in plain English. Request your free copy here.