What Factors Influence A Surviving Spouse’s Applicable Share in North Carolina?
Understanding a Surviving Spouse’s Applicable Share
In North Carolina, a surviving spouse enjoys several statutory rights designed to secure a portion of a deceased spouse’s estate. Whether the decedent left a will or not, the spouse may claim:
- Elective Share under Chapter 30, Article 2A. This allows the surviving spouse to elect against a will and claim a percentage of the augmented estate.
- Intestate Share under N.C.G.S. § 29-14 if no valid will exists or the spouse elects against the will.
- Family Allowance in lieu of dower or curtesy under N.C.G.S. § 30-3.1.
- Homestead Exemption under N.C.G.S. § 29-34 and a Personal Property Exemption under N.C.G.S. § 28A-25.3(d) before creditors are paid.
Together, these rights set the minimum share a spouse may receive. The exact amount depends on several factors tied to the size and makeup of the estate and the nature of the marriage.
Key Factors That Influence a Surviving Spouse’s Applicable Share
- Length of the Marriage: North Carolina law calculates the elective share percentage based on how long the couple was married. A marriage of ten years or more generally entitles the spouse to 30% of the augmented estate, while shorter marriages yield proportionally smaller percentages. For the full schedule, see N.C.G.S. § 30-3.1(c).
- Value of the Augmented Estate: Under N.C.G.S. § 30-3.6, the augmented estate includes the probate estate plus certain non-probate transfers (trusts, joint accounts, gifts made shortly before death, life insurance paid to third parties, etc.).
- Non-Probate Transfers: Life insurance proceeds, payable-on-death accounts, transfers to trusts, and gifts made within two years of death may all boost the augmented estate and increase the spouse’s elective share.
- Elective Share Election: A surviving spouse must file a written election within eight months after the issuance of letters testamentary or letters of administration. See N.C.G.S. § 30-3.2. Missing this deadline generally bars the claim.
- Credits for Property Passing to the Spouse: The law allows credit for property already passing to the spouse by gift, deed, trust, joint tenancy or beneficiary designation.
- Allowances and Exemptions: Before calculating the elective share, the spouse is entitled to a family allowance, a homestead allowance and a personal property exemption. These statutory amounts reduce the net estate out of which the elective share is measured.
- Will Provisions and Waivers: A valid prenuptial or postnuptial agreement can waive the elective share. Absent a waiver, a spouse can choose the share under the will or the statutory elective share — whichever is greater.
- Debts and Expenses: Funeral expenses, administration costs and outstanding debts reduce the net estate and thus may lower the elective share.
Determining a surviving spouse’s applicable share requires careful review of the estate’s assets, the timing and nature of transfers, the duration of marriage and any existing agreements or elections. North Carolina’s statutes aim to balance testamentary freedom with the need to protect surviving spouses from disinheritance.
Next Steps
If you need guidance on a surviving spouse’s statutory rights or the elective share process, Pierce Law Group can help. Our attorneys combine deep probate knowledge with a clear, straightforward approach. Contact us today by emailing intake@piercelaw.com or calling (919) 341-7055 to schedule a consultation.
