Understanding North Carolina’s Elective Share Statute: Protecting a Surviving Spouse’s Rights
When a loved one passes away, one of the most important—and sometimes overlooked—legal protections for a surviving spouse is North Carolina’s Elective Share Statute. This law ensures that a surviving husband or wife cannot be completely disinherited, even if their spouse’s will or estate plan attempts to leave them little or nothing.
What Is the Elective Share?
The elective share is a portion of the deceased spouse’s “total net assets” that the surviving spouse is legally entitled to claim. This right applies regardless of what the will says. In simple terms, North Carolina law prevents a spouse from cutting the other out of the estate entirely.
The elective share provides a minimum inheritance for the surviving spouse.
Who Can Claim the Elective Share?
A surviving spouse can claim an elective share if:
- They were legally married to the decedent at the time of death, and
- The decedent was a North Carolina resident at the time of death.
Importantly, the right applies even if the spouses were separated, as long as there was no final divorce decree or valid separation agreement that waived these rights.
How Much Is the Elective Share?
The percentage a surviving spouse may claim depends on how long the couple was married:
| Length of Marriage | Elective Share Percentage of Total Net Assets |
|---|---|
| Less than 5 years | 15% |
| 5–10 years | 25% |
| 10–15 years | 33% |
| 15+ years | 50% |
These percentages apply to the total net assets of the decedent’s estate—this includes not only probate property (things that pass through the will), but also certain non-probate assets like joint accounts, life insurance, or trusts in which the decedent retained an interest.
How to Claim an Elective Share
To exercise this right, the surviving spouse must:
- File a petition for elective share in the Superior Court of the county where the decedent lived.
- Act within six months of the issuance of Letters Testamentary or Letters of Administration (the official opening of the estate).
Missing this six-month deadline can result in the loss of the right to claim the elective share.
Why the Elective Share Matters
The elective share law balances testamentary freedom (the right to distribute your property as you wish) with fairness to the surviving spouse. It prevents one spouse from being left destitute after years—or decades—of marriage.
For example, if a husband leaves his entire estate to children from a prior marriage and nothing to his current wife, she can file for her elective share to receive her rightful percentage under North Carolina law.
Can the Elective Share Be Waived?
Yes. A spouse can waive the right to an elective share through a valid prenuptial or postnuptial agreement, as long as the waiver is made knowingly and voluntarily, with full disclosure of financial circumstances. The right to an elective share can also be waived if it can be proved that one spouse abandoned the other.
The Bottom Line
The North Carolina Elective Share Statute is a powerful protection for surviving spouses—but asserting it requires prompt legal action and an understanding of complex estate valuation rules.
If you recently lost a spouse and are concerned about your inheritance rights—or if you’re planning your estate and want to understand how the elective share might affect your wishes—consulting with an experienced estate attorney is essential.
Lohr Law Firm helps North Carolina families protect their rights under the elective share statute and navigate estate disputes with skill and compassion.
Contact us today at (919)348-9211 or evan@lohrnc.com to schedule a consultation and ensure your spousal rights are protected or if you need to defend against this type of claim.
Carolina Estate Law Firm 