Detailed Answer

In North Carolina, an elective share gives a surviving spouse the right to claim a portion of the decedent’s estate instead of what the will provides. This law prevents a spouse from being left with nothing. North Carolina General Statute § 30-3.1 sets the rules for the elective share. You can view the statute here: G.S. 30-3.1.

Amount of the Elective Share
The elective share equals one-third of the net estate if the decedent left no surviving children or grandchildren. If the decedent left one child or more, the elective share equals one-half of the net estate. The “net estate” equals the probate estate, plus certain lifetime transfers, minus funeral costs, debts, and administration expenses.

Who Can File?
Only a surviving spouse qualifies. This applies whether the decedent died with or without a will. The spouse must have been legally married at the time of death.

How to Calculate the Net Estate
1. Identify all assets subject to probate (real estate, bank accounts, personal property).
2. Add certain lifetime gifts and transfers the decedent made within two years of death.
3. Subtract funeral expenses, debts, and administration costs.

Filing the Election
North Carolina law requires that the surviving spouse file a notice of election within 10 months after the decedent’s date of death. To preserve your right:

• Prepare a written notice stating your intent to claim the elective share.
• File the notice in the clerk of superior court’s office in the county where the decedent’s estate is being administered.
• Serve a copy on the personal representative of the estate.

You must follow the format and time limit in G.S. 30-3.1(b). If you miss the deadline, you lose your right to an elective share.

What Happens Next?
After filing, the clerk issues a certificate confirming the election. The personal representative then integrates the elective share into the estate distribution. If the personal representative objects, you may petition the court to resolve any disputes.

Key Points to Understand Your Elective Share

• Eligibility: Only a legally married surviving spouse may file.
• Deadline: File within 10 months of the decedent’s death. Missing this window forfeits the claim.
• Calculation: One-third of the net estate if no surviving issue; one-half if there is surviving issue.
• Filing Process: Submit a written notice in the clerk’s office and serve the personal representative.
• Statutory Authority: North Carolina General Statute § 30-3.1 (view statute).
• Legal Assistance: Seek guidance to ensure accurate calculation and timely filing.