Change in Probate Law

North Carolina is one of many states that gives married couples an elective share of a deceased spouse’s estate. This means that even if you have written your spouse out of your will, he or she can still apply to receive a certain share of your estate after your death. The rules on how this share is calculated changed dramatically on October 1, 2013. The new rule applies to everyone with a death date of 10/1/2013 and after, regardless of when the marriage occurred.

The old rule was that your spouse was entitled to the share they would have received if there had been no will in place at the time of death. This rule can be found at North Carolina General Statue § 29-14. It is somewhat complex, but the rule differentiates between personal property and real property. It also factors in whether the deceased was survived by children (both from the marriage and not) and/or parents.

The new rule is based solely on the length of marriage. The following chart represents the percentages of the new rule:

Percentage of Estate Spouse is Entitled to by Length of Marriage:

  • 15% Less than 5 years
  • 25% 5-10 years
  • 33% 10-15 years
  • 50% 15 years or more

If you have estate-planning documents that were drafted before 10/01/2013 that reference the marital elective share, then you should probably have these documents reviewed by a local attorney. There are a variety of estate-planning techniques that can be utilized to circumvent the marital elective share.

Image Copyright

Clement Law Firm, Asheville, NC -- 828-281-8160