Elective Share: Know Your Options If Your Spouse Disinherits You
Elective Share Will Help You Receive Your Legal Fair Share of the Decedent’s Estate
The elective share law is designed to protect the rights of widows and widowers who learned that they have received very little or nothing after their spouse died. North Carolina has an elective share law that will help you avoid spousal disinheritance, allowing you to claim a portion of the estate regardless of what the will says.
The lawmakers know that disinherited spouses can often face financial hardship, and taxpayers and the community do not want to be financially responsible for widowed individuals who were disinherited. Therefore, if the deceased spouse had assets, the community’s position is that at least a percentage of the estate passes to the surviving spouse for their ongoing care. Several states have similar laws, and the amount the person receives depends on the state they lived in on the date of the decedent’s death.
Losing a loved one is difficult enough without the added worry of an uncertain financial future. If you, as the surviving spouse, discover that for one reason or another, you were overlooked in the inheritance, Lee Laskody of Laskody Law has the experience required to help you work through the process and get the assets to which you may have a right as a surviving spouse.
Who Requires Spousal Elective Share?
Many people turn to a spousal elective estate share when they discover they were left out of the will and are trying to figure out why they were disinherited.
Spousal disinheritance can occur deliberately or due to an oversight or accident. Marriages involving blended families or those that happen later in life may result in the person desiring to leave all of their money and property to their children from a previous relationship. Sometimes, they forgot to update the old will or just hadn’t done so at the time of their death. That way, they are effectively disinheriting their surviving spouse.
Whatever the reason, an experienced probate attorney is the best person to give you information or legal advice regarding which property will be included in the elective estate and what percentage of the value will be considered.
What Is an Augmented Estate?
In some states, including North Carolina, the surviving spouse can choose to decline to take what has been left by the will or the intestate succession and claim a share of the decedent’s augmented estate. The augmented estate contains property and assets owned or controlled by the deceased spouse at the time of death. It may also include real estate and property the deceased spouse gave away shortly before his or her death.
In other words, the augmented estate includes not only property passing through the will, but also bank and investment accounts with a beneficiary, life insurance proceeds, property in certain types of trusts, and a portion of property held jointly. State probate laws determine the percentage of the augmented estate the surviving spouse is entitled to.
Why Some Disinherited Spouses Do Not Get Anything
There are several reasons why a disinherited spouse might not get anything from their deceased partner’s estate. These include the following:
- They assumed that the Estate Executor would protect their interests.
- They didn’t act promptly.
- They were unaware of their rights.
Unfortunately, many people don’t know their options when they have been neglected in their spouse’s estate plan. In fact, spousal elective share is somewhat of a secret. Therefore, if you believe you have been treated unfairly regarding the probate process, you must reach out to an attorney whose primary practice area concerns the elective share process.
Elective Share Definition
The prior North Carolina elective share formula was based upon how many children there were and whether they were related to the surviving spouse. Thankfully, current methods for calculating this are based on the marriage’s length.
How Is Elective Share Calculated in North Carolina?
According to Article 1A of NCS 30-3.1, the elective share definition dictates the statutory amount that the surviving spouse is entitled to. They may choose to substitute this percentage for what their deceased spouse has bequeathed to them in their Last Will and Testament. The formula for spousal elective share is:
- Fifteen percent if married less than five years.
- Twenty-five percent if married between five and ten years.
- Thirty-three percent if married between ten and fifteen years.
- Fifty percent if married fifteen years or more.
Keep in mind that the elective share is not automatically awarded, and the surviving spouse must file a request within six months of the letters of administration issuance. It can be used when the will leaves the spouse any amount lower than they would receive by statute. A North Carolina estate administration attorney will offer advice and information regarding how the elective share may be the right option for you.
Elective Share Statute of Limitations
The surviving spouse needs to make sure they make the claim before the statute of limitations passes. They can’t wait forever. Each state has regulations that limit the time period for this process. Spouses who delay lose the right to an elective share. They must do so in a timely manner and in the proper form.
Surviving spouses and estate executors should consult with a probate attorney who has experience with this regulation. The executor or a personal representative of the deceased spouse’s estate will look for errors in the claim and try to find discrepancies that would disqualify the electing spouse. Personal representatives are responsible for any mistakes in the documents, so the distribution of assets, including the elective share, is postponed until the entire process has been completed.
What Is an Elective Share and What Can It Do?
Most people don’t look into this topic until and unless they need it, leaving them to wonder “Exactly what is an elective share?” This statute helps a person receive a percentage of their deceased partner’s estate.
The North Carolina elective share also applies to specific property that the decedent had a lifetime interest in, as well as their probate assets. This can make calculating the amount of the decedent’s estate that belongs to the surviving spouse challenging.
- Bank Accounts
- House and Property
- Life Insurance Policies
- Retirement Accounts and Funds (like IRA, 401k)
The amount of the elective share depends on the facts of your case. Even though the formula for calculating the share was simplified, couples shouldn’t overlook the necessity for continuing estate planning. In marriages that pass one of the benchmark years or have estate plans created using the old law’s formula, the couple should update their plan to incorporate the new numbers.
Waiving the Elective Estate Option
A couple also can waive the Elective Estate Share but must handle it either before or during the marriage. It may be included in a prenuptial or postnuptial agreement document. The couple must consent, in writing, to a partial or complete waiver of the Spousal elective estate share rights.
Most waivers regarding elective shares that take place after the marriage are partial waivers. Discussing making the election and available options, including a complete or partial waiver, with a qualified attorney will clarify the matter.
Receiving an Elective Share Trust as a Surviving Spouse
Choosing an elective share is an option when a trust disinherits the surviving spouse. Disinheritance occurs when a family member drafts an estate plan that bequeaths little or nothing to someone — in this case, their spouse. They may do this with a will, property held in a trust, or a combination of the two.
Placing the estate in a revocable trust is one method people use to leave their partner with nothing. When the surviving spouse dies, assets that are still in the trust will be distributed to other family members of the original decedent. This is done without the control or direction of their surviving partner.
A surviving spouse who has been disinherited from their deceased spouse’s estate, or is otherwise dissatisfied with their inheritance, has the right to receive an elective estate share of the decedent’s revocable trust regardless of their estate plan. They should contact a reputable law firm specializing in elective share issues in North Carolina as soon as they are aware that they have been disinherited.
Contact an Estate Attorney with Elective Share Experience
It becomes a Probate Litigation issue if the spouse makes an incorrect demand for elective share or the executor refuses to recognize the spouse’s rights to it. The surviving spouse can retain an estate litigation attorney to push for their share. Likewise, the Administrator can hire an estate litigation attorney to protect the estate’s assets.
If they are unable to settle the issue, the parties may initiate evidentiary discovery. Discovery consists of the right to depose and interview witnesses and subpoena documents. The evidence this process uncovers is submitted to the court at trial. The judge then determines the validity of the claim. In an elective share proceeding, this has to do with determining what assets are in the augmented estate and their value. The judge then determines the value of the elective share.
If you are dealing with the complicated matters that accompany probate litigation, a reputable North Carolina estate litigation lawyer with an emphasis on the elective estate share process will provide valuable insight into the subject.
Download the start guide to learn the elective share law basics, including what to expect and how to collect your share. Once you’re ready to begin taking action, contact Laskody Law for an initial consultation.