Detailed Answer

Under North Carolina law, a surviving spouse may claim an elective share of the deceased spouse’s estate. This right protects spouses from being disinherited or receiving an unfairly small portion of assets. The elective share allows you to claim a statutory portion, even if the will leaves you less.

North Carolina General Statutes Chapter 30 governs the elective share. For example, N.C. Gen. Stat. § 30-3.1 defines the amount you may claim, and N.C. Gen. Stat. § 30-3.2 establishes the filing deadline. You must file your petition in the Clerk of Superior Court’s office in the county where the estate is administered. You have six months from the date the personal representative first qualifies—usually the date letters of administration or letters testamentary issue—to file. Missing this deadline waives your right to an elective share.

Begin by preparing a Petition for Elective Share. This document should include:

• Your name and contact information as the petitioner.
• The decedent’s name and date of death.
• A statement that you elect to take your statutory share under Chapter 30.
• A calculation or estimate of the elective share amount.
• A list of known assets and their values.

File the petition with the Clerk of Superior Court and pay the statutory filing fee. After filing, serve a copy on the personal representative. Use registered or certified mail to confirm delivery. The clerk will set a hearing date. Attend the hearing ready to explain your claim and submit evidence of asset values. The court will then enter an order granting or adjusting the elective share.

Key Steps to File an Elective Share Petition

• Determine the deadline: File within six months of personal representative qualification (see N.C. Gen. Stat. § 30-3.2).
• Identify the proper court: File in the Clerk of Superior Court where the will was probated or administration opened (N.C. Gen. Stat. § 28A-2).
• Draft the petition: Include all required details, the estate’s asset list, and the statutory share calculation (N.C. Gen. Stat. § 30-3.1).
• File and pay fees: Submit the petition and pay court costs.
• Serve notice: Deliver a copy to the personal representative by registered or certified mail.
• Attend the hearing: Present evidence to support the value of assets and your share.