North Carolina law affords surviving spouses important rights and benefits. In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.
What if a Spouse Dies Without a Will?
- INTESTATE. When an individual dies without a will, intestate succession law will govern. Under North Carolina law, a statutory framework determines how a decedent’s estate will be distributed. This is referred to as Intestate Administration.
- INTESTATE SHARE. If a spouse dies without a Will, the surviving spouse receives an intestate share.
- SHARE OF SURVIVING SPOUSE – NO CHILDREN AND NO PARENTS. If the only survivor is a surviving spouse then the surviving spouse receives the entire estate of the decedent.
- SHARE OF SURVIVING SPOUSE – ONE CHILD. If there is one surviving child, the surviving spouse receives one-half of the real property and the first $60,000 of the estate’s personal property, and one-half of the rest. See N.C. Gen. Stat. § 29-14.
- SHARE OF SURVIVING SPOUSE – TWO OR MORE CHILDREN. If there are two or more surviving children, the surviving spouse receives one-third of the real property and the first $60,000 of the estate’s personal property, and one-third of the rest. See N.C. Gen. Stat. § 29-14.
Elective Share or Election Against a Will
- ELECTIVE SHARE. Under North Carolina law, a surviving spouse has a right to share in a decedent’s estate. In essence, a surviving spouse’s right of election renders it impossible to disinherit a spouse. Section 30-3.1 provides that a surviving spouse has the right to override the Will’s terms and receive an elective share of the decedent’s total net assets. Under the statutory framework outlined in N.C. Gen. Stat. § 30-3.1(a), the duration of the marriage prior to the decedent’s death will give rise to the percentage of the elective share that the surviving spouse is entitled to. The surviving spouse’s percentage is not affected based on the number of the decedent’s marriages or the number of the decedent’s children. In addition, the applicable share is of the total net assets less the value of net property passing to the surviving spouse.
– Less than five years: 15%
– 5 years but not less than 10 years: 25%
– 10 years but less than 15 years: 33%
– 15 years or more: 50%
- DEADLINE FOR FILING FOR THE ELECTIVE SHARE. The surviving spouse must file a claim for an elective share within six months after the issuance of letters testamentary or letters of administration in connection with the will or intestate proceeding. Filing the claim for the elective share made be made by (i) filing a petition with the clerk of superior court of the county in which the primary administration of the decedent’s estate lies, and (ii) mailing or delivering a copy of that petition to the personal representative of the decedent’s estate. See N.C. Gen. Stat. § 30-3.4(b).
- The share is not automatic; the surviving spouse must take action. It is important, however, to act as quickly as possible to avoid any pitfalls that may result from a failure to make such an election.
Every surviving spouse, whether or not the surviving spouse has petitioned for an elective share, shall, unless the surviving spouse has forfeited the surviving spouse’s right thereto, as provided by law, be entitled, out of the personal property of the deceased spouse, to an allowance of the value of thirty thousand dollars ($ 30,000) for the surviving spouse’s support for one year after the death of the deceased spouse. Such allowance shall be exempt from any lien, by judgment or execution, acquired against the property of the deceased spouse, and shall, in cases of testacy, be charged against the share of the surviving spouse. See N.C. Gen. Stat. § 30-15.
Survival by 120 Hours
For the purposes of intestate succession, homestead allowance, and exempt property, the surviving spouse must survive the decedent by one hundred twenty hours. A surviving spouse who fails to survive the decedent by one hundred twenty hours will be deemed to have predeceased the decedent.