Elective Share Petitions and Jurisdiction in North Carolina
In North Carolina, a surviving spouse can file an elective share petition to claim a portion of the deceased spouse’s estate. This right applies when the surviving spouse receives less than the minimum statutory share under a will or when the decedent dies without a will. North Carolina law sets clear procedures, deadlines, and venue rules for these petitions.
Detailed Answer
What Is an Elective Share?
Under N.C.G.S. § 30-3, a surviving spouse may elect to receive a statutory share of the augmented estate. If the decedent left children or grandchildren, the elective share equals one-third of the augmented estate. If not, it equals one-half. The augmented estate includes probate assets, transfers made shortly before death, joint accounts, and certain gifts.
Where and When to File
The Clerk of Superior Court must have jurisdiction over the estate to grant an elective share. You must file your petition in the county where the decedent’s will is being probated. If no will exists, file in the county of the decedent’s last domicile. North Carolina law requires filing within six months of the date the will is admitted to probate or of the appointment of an administrator, per N.C.G.S. § 28A-4-5(c)(2). Missing this deadline may forfeit your right unless the court grants an extension for good cause.
How the Court Decides
When you file, the clerk reviews your petition, confirms your marital status, and values the augmented estate. The clerk then issues an order stating the elective share amount. The personal representative of the estate must transfer assets or make a cash payment to satisfy that order. If parties dispute valuation or procedural issues, the clerk may transfer the matter to Superior Court for a full hearing.
Key Points to Remember
- Eligibility: Surviving spouse of a decedent domiciled in North Carolina.
- Statutory Share: One-third or one-half of the augmented estate (N.C.G.S. § 30-3).
- Augmented Estate: Includes probate assets, nonprobate transfers, joint accounts, and certain gifts.
- Filing Deadline: Six months from probate or letters issuance (N.C.G.S. § 28A-4-5(c)(2)).
- Venue: Clerk of Superior Court in the county where the estate is administered or where the decedent last lived.
- Clerk’s Review: Confirms eligibility, estate valuation, and prepares the elective share order.
- Compliance: Personal representative transfers assets or pays cash per the clerk’s order.
- Disputes: Petitions on valuation or jurisdiction go to Superior Court for resolution.
Get Help with Elective Share Petitions
If you need guidance on filing an elective share petition or understanding your rights under North Carolina law, Pierce Law Group has experienced attorneys ready to assist you. We will ensure you meet all deadlines and procedural requirements and advocate for your statutory share.
Contact Pierce Law Group today: intake@piercelaw.com or call (919) 341-7055.
