It is a share of more than just the estate assets.
It is possible to have a probate estate with no assets, and still have a big elective share case. How is this possible? The elective share is a portion of something called the Total Assets. Total Assets include the probate estate, but also include other types of assets or property owned or controlled at the time of death.
This is a bit simplified, but for most people the Total Assets look like this:
– Assets usually controlled by the Will and probate estate:
o Real estate
o Household goods and personal items
o Bank accounts without a death beneficiary
– Assets usually NOT controlled by the Will and probate estate:
o Bank, investment, and retirement accounts that have a death beneficiary
o Death benefits from life insurance
o Property in a trust controlled by the decedent
o Property given away within one year of death
So as you can see, some people are going to have a lot of property go through their probate estate, while others may have little or nothing go through the estate, even though there may be a lot of wealth passing on. For example, some people will have most of their wealth in real estate, while others may have no real estate and a lot of investment accounts. This is why the North Carolina elective share law allows the surviving spouse to take a portion of Total Assets, instead of just a portion of the probate estate.