Detailed Answer

North Carolina’s elective share statute gives a surviving spouse a right to claim a portion of the decedent’s estate when the will provides less than the statutory share. This law replaced the old common‐law dower system in 1911 to protect spouses from being disinherited. Under G.S. 30-3, a spouse may elect to take one-third of the decedent’s net estate instead of what the will provides.

Historical Background

Before 1911, North Carolina relied on common‐law dower, which gave widows a life interest in one-third of the real property owned by their husbands during marriage. Lawmakers recognized that this model often failed to protect spouses when estates consisted mostly of personal property or when large gifts passed outside the probate estate. In response, the General Assembly enacted the elective share statute to:

• Provide a uniform, monetary right rather than a life estate.
• Cover both real and personal property included in probate.
• Ensure spouses receive a fair portion of the estate regardless of will provisions.

Purpose of the Elective Share

The elective share statute aims to:

• Prevent complete disinheritance of a spouse.
• Simplify estate administration compared to life‐estate dower rights.
• Promote financial security for the surviving spouse.
• Encourage fair estate planning by account holders.

How the Elective Share Operates Today

When a will provides less than one-third of the net probate estate, the surviving spouse has two options:

1. Accept everything under the will.
2. File an election in the clerk’s office within six months after probate of the will or one year after the decedent’s death, whichever is earlier. See G.S. 28A-13-1.

Once elected, the spouse receives one-third of the estate’s net value after debts, expenses, and allowances. The clerk issues an order detailing assets to transfer to the spouse. This claim takes priority over most distributions to other beneficiaries.

Key Points to Remember

• Eligible Person: Only a surviving spouse qualifies for the elective share.
• Statutory Share: One-third of the net probate estate under G.S. 30-3.
• Filing Deadline: Six months after the will’s probate or one year after death.
• Procedure: File a written election in the clerk’s office in the county where the will was probated.
• Effect on Estate Planning: Couples should review wills, trusts, and beneficiary designations to anticipate an elective share claim.
• Statute Reference: Read the full text at ncleg.gov for G.S. 30-3 and related election filing rules under G.S. 28A-13-1.

Contact Pierce Law Group

Understanding the elective share helps protect a spouse’s rights and guides estate planning. At Pierce Law Group, our attorneys have decades of experience in North Carolina probate. We help you navigate elective share claims and estate administration. Contact us today to discuss your situation:

• Email: intake@piercelaw.com
• Call: (919) 341-7055