Elective Share: Understanding Its Purpose and the Process
When someone dies in North Carolina leaving a spouse, that spouse may claim an elective share to protect their inheritance rights. This right ensures that a surviving spouse receives a portion of the estate even if the decedent’s will reduces or eliminates their gift.
Purpose of the Elective Share
The elective share aims to prevent disinheritance of the surviving spouse. Under N.C. Gen. Stat. § 30-3, North Carolina defines an “augmented estate” and guarantees the spouse a minimum share. This rule balances the decedent’s testamentary freedom with the spouse’s financial security.
Determining the Augmented Estate
You calculate the augmented estate by combining the probate estate with certain non-probate transfers. These include the decedent’s:
- Assets passing through probate,
- Jointly owned property with right of survivorship,
- Trust assets where the decedent retained an interest,
- Life insurance proceeds if the estate is the beneficiary.
The surviving spouse may claim one-third of this total as their elective share.
Filing an Elective Share Election
To make the election, the spouse must file a Notice of Election with the clerk of the probate court. North Carolina law requires filing within eight months of the first publication of the notice to creditors. See N.C. Gen. Stat. § 30-4.
Distributing the Elective Share
After the clerk receives the notice, the personal representative must value the augmented estate and allocate assets to satisfy the elective share. If the estate lacks sufficient liquid assets, the personal representative may adjust distributions or sell property to raise cash.
Consequences of Failing to Elect
If the surviving spouse misses the filing deadline, they forfeit the elective share and remain limited to the gifts provided in the will or by intestate succession.
Key Points to Remember
- Identify all probate and non-probate assets to form the augmented estate.
- Calculate one-third of the augmented estate for the elective share.
- File the Notice of Election within eight months of first probate notice.
- Work with the personal representative to value assets and distribute the share.
- Plan for estate liquidity to ensure timely distribution.
- Act promptly to preserve your elective rights.
An elective share can safeguard your inheritance and ensure financial stability after a loved one’s death. If you need help determining the elective share or navigating probate administration, contact Pierce Law Group. Our attorneys provide clear guidance at every step. Email us at intake@piercelaw.com or call (919) 341-7055 to schedule a consultation.
