Disinherit Spouse: When a Surviving Spouse Is Left Out From the Will
North Carolina law determines whether someone can disinherit their spouse. Whether your deceased spouse has disinherited you or you are wondering if you can disinherit your spouse, there are a few things you need to know.
Disinherit Spouse: Can a Surviving Spouse Get a Portion of the Deceased Spouse’s Estate?
Creating a last will and testament is necessary if an individual wants to specify how their estate and assets will be distributed. If one spouse dies without a valid will, the state of North Carolina will disperse their assets according to intestacy state law. If the couple had no children, the surviving spouse will most likely get the entire estate.
However, if two spouses were in the middle of a divorce or a marital dispute, the deceased spouse may have intentionally tried to disinherit their surviving spouse. In that case, elective share laws can be an option for a disinherited spouse.
Attempts to disinherit a spouse happen more often than one can imagine. If you found out after your spouse’s death that you were disinherited, you have to act quickly. You can benefit from the help of an elective share attorney such as Lee Laskody of Laskody Law. Because of his overwhelming experience in this area of the law, he can assist you through this process, provide legal advice, and help you receive property and assets you may have a right to.
Can You Disinherit Your Spouse in North Carolina?
In North Carolina, it is not easy to disinherit your spouse. Although a surviving spouse can be left out of the deceased spouse’s will, North Carolina state laws provide an inheritance called an elective share. According to elective share laws, the amount of the estate the surviving spouse would inherit depends on the length of the marriage and can be from 15% to 50% of the deceased spouse’s estate.
So, even if the omitted spouse is not mentioned in a will or trust, they will have the right to challenge them and get the share of the deceased spouse’s estate.
Elective share laws aim to prevent a married person from intentionally disinheriting their surviving spouse in the will. If a surviving spouse doesn’t get the amount provided in the elective share laws from specific sources, they can make a claim to a portion of the estate. These sources include:
- The decedent’s real estate or joint accounts with right of survivorship;
- The decedent’s will;
- The decedent’s non-probate assets including retirement accounts, life insurance, and other accounts for which the surviving spouse is named as beneficiary.
But, if the surviving spouse is not mentioned in the will but has received a part of the estate property from one of the other two sources, an elective share claim will be reduced or won’t be applicable.
How to Disinherit a Spouse: Waiving the Surviving Spouse’s Right to Elect
The only way for disinheriting a spouse is for the new spouse to sign a prenuptial or postnuptial agreement. They have to give up their surviving spouse’s right to inherit from the decedent’s estate and the right of election in case of the decedent’s death.
However, the elective share is not automatically awarded; the omitted spouse has to make a request. If this is not done within the set time limit, they lose their right of election.
The surviving spouse can claim their elective share rights by filing an elective share claim with the Clerk of Superior Court in the appropriate county. There is a specific procedure that has to be followed for the claim to be valid. Among other procedures, the deceased’s estate personal representative has to be notified of the claim.
Can a Spouse Be Disinherited?
Since 2013, a change in North Carolina Elective Share law established a new formula on how the value of an elective share is calculated. The determining factor that is considered is the length of the marriage.
So, if the marriage lasted for longer than 15 years, the surviving spouse is entitled to one-half of the estate. If it lasted more than 10 but less than 15 years, the surviving spouse is entitled to about one-third of the estate. The percentage of the deceased spouse’s estate to which the surviving spouse is entitled gradually lowers as the marriage length shortens.
Can a Person Totally Disinherit a Spouse?
Is it possible to completely disinherit your spouse? Surviving spouse’s right of election can be waived in a prenuptial agreement if both spouses are completely informed of what they are waiving and the consequences of this decision. Such agreements usually have to be made in writing and in good faith, with full disclosure of personal property and other assets.
Although states typically don’t allow disinheriting a spouse, disinheriting a former spouse can be done. Divorce terminates former spouses’ right to election.
Which States Allow You to Disinherit a Spouse?
In most states, one can’t intentionally disinherit their spouse unless they agree to waive their surviving spouse’s right to inherit. Some laws protecting surviving spouses are determined by how long the spouses were married. In contrast, others are based on whether there were any children in the marriage or whether the decedent has left any assets that have to go through probate.
In community property states, such as California, Texas, Washington, Idaho, Louisiana, a disinherited surviving spouse is entitled to half of the community property.
Other states, including West Virginia, Alaska, Colorado, Kansas, and Minnesota, use the Uniform Probate Code. These states allow disinherited surviving spouses to decline the share that has been left to them by the will and claim the share of the deceased’s augmented estate.
The augmented estate is usually larger than the deceased spouse’s probate estate because probate estate also includes non-probate assets. However, in the case of augmented estate, the value of the estate is reduced by funeral and administration expenses and other claims and debts.
In North Carolina, as well as Delaware, New Jersey, New York, Virginia, and several other states, a disinherited surviving spouse is entitled to a portion of the deceased spouse’s probate estate assets along with some non-probate assets.
Lastly, in some states, a disinherited spouse is entitled to just a portion of the deceased spouse’s probate estate. That means one spouse can completely disinherit another if they leave no assets that need to go through probate.
Is It Legal to Disinherit Your Spouse?
Spousal rights vary from state to state. Although some think they can put their assets in a revocable living trust and prevent their surviving spouse from claiming their share of the estate, that is not always possible.
In the majority of the U.S. states, it’s not easy or even possible to completely disinherit a surviving spouse. However, it is entirely possible to use an estate plan to disinherit other family members when it comes to other beneficiaries.
A spouse can waive their right of election in a written agreement, but both spouses have to be aware of the consequences of such agreement.
If you want to learn more about estate planning and spousal inheritance rights, reach out to Laskody Law for help and legal advice.