Case of Elective share.
There’s one person in NC that can’t be disinherited from an estate. It’s the dead person’s spouse.
If a spouse is written out of a will, then that spouse has options. Kirk Sanders, Estate Litigation Attorney, has handled these types of cases. This also applies if the surviving spouse is not given enough by the dead spouse’s estate.
One situation included a stipulation in the will that the surviving spouse received a life estate in a piece of property on the condition that he not co-habitate with other women. Our firm’s estate litigation attorneys were able to trump that provision using the statute below and the spouse opted for a life estate in all real property and personal property without any limitations.
Other times we’ve had cases where the spouse was completely written out of the dead spouse’s estate and did not receive any of the dead spouse’s financial accounts or life insurance policies. We were able to file the Elective Share action to get our client their fair share of the total net assets of the dead spouse’s total value.
It is important to note that there is a six (6) month time period to bring these actions. Also, some folks have improperly filed the action and failed to timely serve the actions pursuant to the NC Rules of Civil Procedure. These traps were costly. As a result the surviving spouse’s claim was dismissed. Be cautious. You should use a NC estate litigation attorney. Protect the inheritance rights of a surviving spouse.
Below is a discussion and excerpts for spouses to inherit from the North Carolina General Statutes
§ 30-3.1. Right of elective share. THIS IS WHERE THE SURVIVING SPOUSE TAKES THIS ELECTION IN LIEU OF WHAT THEY RECEIVED UNDER THE WILL AND OTHER ASSETS OF THE DECEDENT-TESTATOR.
(a) Elective Share. – The surviving spouse of a decedent who dies domiciled in this State has a right to claim an “elective share”, which means an amount equal to (i) the applicable share of the Total Net Assets (see bottom of this discussion for definition of “Total Net Assets”), as defined in G.S. 30-3.2(4), less (ii) the value of Net Property Passing to Surviving Spouse, as defined in G.S. 30-3.2(2c). The applicable share of the Total Net Assets is as follows:
(1) If the surviving spouse was married to the decedent for less than five (5) years, fifteen percent (15%) of the Total Net Assets.
(2) If the surviving spouse was married to the decedent for at least five (5) years but less than ten (10) years, twenty-five percent (25%) of the Total Net Assets.
(3) If the surviving spouse was married to the decedent for at least 10 years but less than 15 years, thirty-three percent (33%) of the Total Net Assets.
(4) If the surviving spouse was married to the decedent for 15 years or more, fifty percent (50%) of the Total Net Assets.
Total Net Assets as Defined by 30-3.2 (3f)
Total assets. – The sum of the values, as determined pursuant to G.S. 30-3.3A, of the following:
a. The decedent’s property that would pass by intestate succession if the decedent died without a will, other than wrongful death proceeds;
b. Property over which the decedent, immediately before death, held a presently exercisable general power of appointment, except for (i) property held jointly with right of survivorship, which is includable in total assets only to the extent provided in sub-subdivision c. of this subdivision and (ii) life insurance, which is includable in Total Assets only to the extent provided in sub-subdivision d. of this subdivision. Includes, without limitation:
1. Property held in a trust that the decedent could revoke.
2. Property held in a trust to the extent that the decedent had an unrestricted power to withdraw the property.
3. Property held in a depository account owned by the decedent in a financial institution payable or transferable at decedent’s death to a beneficiary designated by the decedent.
4. Securities owned by the decedent in an account or in certificated form that are payable or transferable at decedent’s death to a beneficiary designated by the decedent.
c. Property held as tenants by the entirety or jointly with right of survivorship as follows:
1. One-half of any property held by the decedent and the surviving spouse as tenants by the entirety or as joint tenants with right of survivorship is included, without regard to who contributed the property.
2. Property held by the decedent and one or more other persons other than the surviving spouse as joint tenants with right of survivorship is included to the following extent:
I. All property attributable to the decedent’s contribution.
II. The decedent’s pro rata share of property not attributable to the decedent’s contribution, except to the extent of property attributable to contributions by a surviving joint tenant.
The decedent is presumed to have contributed the jointly owned property unless contribution by another is proven by clear and convincing evidence.
d. Benefits payable by reason of the decedent’s death under any policy, plan, contract, or other arrangement, either owned by the decedent or over which the decedent had a general power of appointment or had the power to designate the surviving spouse as beneficiary, including, without limitation:
1. Insurance on the life of the decedent.
2. Accidental death benefits.
3. Annuities.
4. Employee benefits or similar arrangements.
5. Individual retirement accounts.
6. Pension or profit sharing plans.
7. Deferred compensation.
8. Any private or governmental retirement plan.
e. Property irrevocably transferred by the decedent to the extent the decedent retained the possession or enjoyment of, or the right to income from, the property for life or for any period not ascertainable without reference to the decedent’s death or for any period that does not in fact end before the decedent’s death, except:
1. Property transferred for full and adequate consideration.
2. Transfers to that the surviving spouse consented in writing by signing a deed, an income or gift tax return that reports the gift, or other writing.
3. Transfers that became irrevocable before the decedent’s marriage to the surviving spouse.
The property included in total assets is that fraction of the transferred property to which the decedent retained the right.
f. Property transferred by the decedent to the extent the decedent created a power over the property or the income from the property, which, immediately prior to death, could be exercised by the decedent in conjunction with any other person, or which could be exercised by a person who does not have a substantial interest that would be adversely affected by the exercise or nonexercise of the power, for the benefit of the decedent, the decedent’s estate, the decedent’s creditors, or the creditors of the decedent’s estate, except:
1. Property transferred for full and adequate consideration.
2. Transfers to which the surviving spouse consented in writing by signing a deed, an income or gift tax return that reports the gift, or other writing.
3. Transfers which became irrevocable before the decedent’s marriage to the surviving spouse.
The property included in total assets with respect to a power over property is that fraction of the property to which the power related.
g. Property transferred by the decedent to persons other than the surviving spouse if such transfer was made both during the one-year period immediately preceding the decedent’s death and during the decedent’s marriage to the surviving spouse, except:
1. Property transferred for full and adequate consideration.
2. Transfers to which the surviving spouse consented in writing by signing a deed, an income or gift tax return that reports such gift, or other writing.
3. That part of any property transferred to any one transferee that qualified for exclusion from gift tax under section 2503 of the Code.
For purposes of this sub-subdivision, the termination of a right or interest in, or power over, property that would have been included in the total assets under sub-subdivisions b., e., or f. of this subdivision if the right, interest, or power had not terminated until the decedent’s death shall be deemed to be a transfer of such property. Termination occurs when, with respect to a right or interest in property, the decedent transfers or relinquishes the right or interest; with respect to a power over property, the power terminates by exercise or release, but not by lapse or default.
If property falls under more than one sub-subdivision of this subdivision, then the property shall be included only once, but under the sub-subdivision yielding the greatest value of the property.
(4) Total Net Assets. – The total assets reduced by year’s allowances to persons other than the surviving spouse and claims. (2000-140, s. 92; 2000-178, s. 2; 2001-364, s. 4; 2001-487, s. 16; 2003-296, s. 2; 2009-368, s. 1.)
Call Kirk Sanders at 336-723-7200 to discuss your estate issues in North Carolina. He is chair of Hendrick Bryant’s Fiduciary Litigation Section.
Kirk Sanders is a lawyer who handles fiduciary litigation, litigates power of attorney abuse claims in NC, will contest claims in NC, estate lawsuits in NC, and trusts lawsuits in NC.
