Updated 2023

Surviving Spouse

When a married person dies, their 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 the proper filing of a claim for elective share within six months of the Decedent’s death.

An Elective Share is often claimed when the Decedent did not include their surviving spouse in their estate plan or only minimally included the surviving spouse such that the amount the surviving spouse was left by the Decedent is below the Elective Share amount. 

The Elective Share for North Carolina is set by statute. Effective October 1, 2013, the North Carolina Elective Share amount 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%.

North Carolina Elective Share laws also include very specific definitions for determining which assets count as part of the “Estate” for purposes of the calculation. For example, any life insurance proceeds if the Decedent had a life insurance policy are considered part of the Estate for the Elective Share calculation, even though life insurance proceeds usually are transferred outside of the courts. Other assets that may pass outside of the courts but still count towards the Estate include accidental death benefits, IRAs, and pension plans. 

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.

How Should I Proceed?

If you are in need of an experienced estate administration attorney to assist in pursuing or defending an Elective Share claim, our team at Carolina Family Estate Planning provides a full-service approach to the probate process that minimizes headaches and ensures the right choices are made at every crossroad. All of this is done with love and compassion during a difficult time. If you need help and guidance navigating this, call us at (919) 899-2901 or visit our website to schedule a free needs assessment call with one of our friendly client welcome specialists.

Jennifer Mercer
Paralegal, Probate and Estate Administration Team Lead