Second Marriages: How much of your estate is your Spouse entitled to?

Jackie Bedard
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In North Carolina, your last will and testament cannot completely disinherit a surviving spouse from your estate. While you can legally disinherit your children from your assets, your surviving spouse cannot be disinherited from your will unless you both have expressly agreed to that provision in a prenuptial or postnuptial agreement.  Most states, including North Carolina have what are known as Elective Share statutes.  Elective Share statutes describe a minimum portion of a deceased spouse’s estate for which a surviving spouse may petition the court for in the event that the will disinherited them or left them a smaller amount than they’re entitled under the Elective Share statutes.

There are two primary reasons for Elective Share statutes.  First, if marriage is considered a partnership between two individuals, then the surviving spouse should be entitled to half of the estate. Second, North Carolina has a public policy interest in not leaving spouses destitute and incapable of supporting themselves when their partner dies.

In most states, the surviving spouse’s elective share will either be one-third or one-half of the deceased spouse’s estate.  In many states, the amount of the elective share may depend on whether or not the decedent also had children and how many children, as well as whether the surviving spouse is from a first or subsequent marriage. 

In 2013, North Carolina changed its elective share rules to be based upon the length of the marriage. Thus, in North Carolina, the elective share amount is as follows:

  • 15% if the couple was married for less than 5 years;
  • 25% if the couple was married for more than 5 but less than 10 years;
  • 33% if the couple was married for more than 10 but less than 15 years; and
  • 50% if the couple was married for 15 years or older.

Under the elective share laws, if the amount of property passing to the surviving spouse, through both the right of survivorship (a shared home, shared bank accounts, etc.) and their allotment in the will, is less than their elective share, then the surviving spouse can petition the court to recover the difference between the allotment and the elective share. For example, if Sue was left $50,000 in her husband’s will, but the value of her elective share is $80,000, then Sue can petition the court to receive the additional $30,000.

So when might the use of the Elective Share statute be necessary? Consider a famous case involving the founder of the Hooters franchise, Mr. Brooks, and the Elective Share statute.  When Mr. Brooks died, his will divided up his expansive estate accordingly: 30% to each of his two children, 10% to Clemson University and the remaining 30% to various family members.  He left his second wife, Tami, $1 million a year for 20 years. Tami rejected that offer and instead she used the Elective Share statute to petition the court for a third of Mr. Brooks’ estate. Mr. Brooks’ son was unsuccessful in challenging Tami’s claim, as Elective Share statutes have consistently been held constitutional.

There are many steps that you can take today to ensure that your estate is divided up according to your wishes. First, make sure that your official will and testament factors in your spouse’s Elective Share in your estate. Expressly leaving your spouse half of your estate (or a third of the estate, depending on your location and circumstances) can easily prevent a legal battle between your children, your spouse and other individuals with interest in your estate. Second, if you and your spouse have discussed your wishes to give your estate only to your children, then you can use a postnuptial agreement (or prenuptial agreement if you have yet to tie the knot) to legally limit your spouse’s Elective Share in your estate.

To learn more about common estate planning issues, check out our free guide, Estate Planning Pitfalls: The 12 Most Common Threats to Your Estate & Your Family's Future, or to discuss your estate planning concerns, please call our office at 919-443-3035 or use our contact form.