When a married person dies, his or her surviving spouse is entitled to a portion of the estate under state law. The portion is called the elective share. It is also known as the statutory share. So, a surviving spouse can claim a portion of the deceased’s estate, even if the will outlines something different. The share is determined by the state’s statutes. Below, our estate lawyers in Cary NC share more information about this matter.
Elective Share | Estate Lawyers in Cary NC
The purpose of the law is to keep a surviving spouse from being left with nothing, especially if he or she is unable to support him or herself. It aims to make sure the surviving spouse is treated fairly. Each state has its own laws pertaining to how much a spouse is entitled to receive, and whether the length of marriage or number of children determines the amount.
If someone leaves less to their spouse than is outlined under the elective share law, the surviving spouse can contest it so that he or she can receive the amount determined by the state.
In North Carolina, the amount of elective share is determined by the length of marriage only. It was revised in 2013. Previous statues were seen an unfair to the deceased’s children. It also reduced the amount if the surviving spouse was the second spouse. In some cases, the amount the surviving spouse received could be as little as one-sixth. Now the smallest amount a surviving spouse can receive is 15 percent.
Even though the new revisions protect spouses even if it wasn’t their first marriage, they prevent some married couples from getting larger amounts distributed to their surviving spouses. A newly married couple will only see 15 percent of the assets going to the survivor, even if they have been together for longer but not married.
Eight other states, Colorado, Hawaii, Minnesota, Montana, Oregon, South Dakota, Tennessee and West Virginia, have adopted a similar sliding percentage scale for their elective share statutes.
There are requirements that must be met in order for a surviving spouse to claim the elective share. It also must be done within a certain time period. To learn more, visit back with our continuing blog post.
Eldreth Law Firm, PLLC | Estate Lawyers in Cary NC
If you have not updated your will since 2013, when the laws were changed in North Carolina, it may be time to review your estate plan with our estate lawyers in Cary NC to ensure that it still meets your needs under the new elective share rules. Contact us, today to make an appointment.
