Short Answer

In North Carolina, a disinherited spouse can claim a statutory “elective share” of the decedent’s estate, even if someone else is the executor. You must file the elective share claim with the Clerk of Superior Court within six months after the court issues letters to the executor. You may also seek a $60,000 year’s allowance for immediate support, contest the will (for example, based on lack of capacity or undue influence), and compel the executor to disclose and account for assets. A separate election may be available for a life estate in the marital residence.

Understanding the Problem

You are a North Carolina surviving spouse who was cut out of a new will and not named executor; the executor is a niece. You want to know what you can do to secure your lawful share and get information about suspected bank and retirement assets.

Apply the Law

North Carolina law protects surviving spouses with several remedies, the most important being the elective share. The elective share is a percentage of the decedent’s total net assets (including many nonprobate transfers), based on the length of the marriage. The proceeding is filed in the decedent’s estate before the Clerk of Superior Court. A strict six-month deadline runs from the issuance of letters to the executor. Separate rights include a year’s allowance for immediate support, a will caveat in Superior Court, information and accounting rights, and a possible life estate election in the marital residence.

Key Requirements

• Elective Share Claim: File within six months after letters issue; spouse must be alive to assert; decedent must have been domiciled in North Carolina; no valid waiver (e.g., prenup) blocking the claim.
• Scope of Assets: “Total net assets” generally includes probate and many nonprobate transfers (such as beneficiary-designated accounts), reduced by certain claims and allowances.
• Executor’s Disclosure Duty: After an elective share petition is filed, the personal representative must provide sufficient information about the decedent’s total assets within about two months so the Clerk can determine the share.
• Year’s Allowance: A surviving spouse may apply with the Clerk for a $60,000 allowance for support within one year of death, even if disinherited.
• Will Caveat: An interested party may file a caveat in Superior Court within three years after the will is probated; common grounds include lack of capacity and undue influence.
• Asset Discovery & Oversight: You can ask the Clerk to order an examination to discover estate assets and, for cause, seek to suspend or remove an executor who fails to perform required duties.
• Life Estate Election: In some cases, a spouse may elect a life estate in one-third of certain real property, including the marital residence, as an alternative to the elective share; procedural details and timing are set by statute.

What the Statutes Say

• N.C. Gen. Stat. § 30-3.1 (Right to Elective Share) – Sets the spouse’s percentage based on length of marriage.
• N.C. Gen. Stat. § 30-3.4 (Elective Share Procedure) – Requires filing within six months and outlines Clerk procedures.
• N.C. Gen. Stat. § 31-32 (Caveat—Time to File) – Gives three years from probate to challenge a will.
• N.C. Gen. Stat. § 28A-15-12 (Proceeding to Discover Assets) – Allows examinations to locate estate assets.

Analysis

Apply the Rule to the Facts: Because you are a disinherited North Carolina spouse and were not named executor, you can still file for an elective share within six months after the Clerk issues letters to the niece. Your belief that bank and retirement funds exist matters: even if those pass outside probate, they can count in the elective share calculation, and the executor must disclose asset information after you file. The decedent’s dementia diagnoses may support a will caveat based on lack of capacity or undue influence, which must be filed within three years after the will is probated. With the home titled to both spouses but not as survivorship property, you already own your share; you may also evaluate a life estate election in the decedent’s share if that better protects your housing.

Process & Timing

1. Who files: Surviving spouse. Where: Clerk of Superior Court in the county where the estate is administered. What: Petition for Elective Share with an Estate Proceeding Summons (AOC-E-102). When: File within six months after letters testamentary/administration are issued.
2. Within about two months after your petition, the personal representative must submit information sufficient for the Clerk to determine total net assets. You can also request a standstill order and use an assets-discovery proceeding if you reasonably suspect assets are being concealed. Scheduling and response times can vary by county.
3. After notice and a hearing, the Clerk enters an order setting your elective share amount. The personal representative then apportions liability among recipients and collects funds to pay your award.

Exceptions & Pitfalls

• Signed waivers (such as prenuptial or postnuptial agreements) can bar or limit your elective share.
• The six-month elective share deadline is not extended for incapacity; file promptly. You must be alive to assert the claim.
• Do not assume “no probate assets” means no rights; nonprobate transfers may still count toward the elective share, and you can compel information.
• If you intend to challenge the will, remember the separate three-year caveat deadline from the date of probate; you may pursue both an elective share and a caveat.
• Choosing a life estate in the residence versus an elective share is strategic; procedures and deadlines apply, and the better option depends on asset mix and debts.

Talk to a Probate Attorney

If you’re dealing with a disinheritance and an executor who denies assets, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.