Marietta, GA asked in Estate Planning, Family Law and Probate for North Carolina

Q: NC Elective Share calculation - Can someone explain the calculation in layman terms?

2 Lawyer Answers

Amanda Bowden Houser

Answered
  • Jacksonville, NC
  • Licensed in North Carolina

A: Essentially, a deceased person could have taken any number of incredibly simple steps legal and / or illegal to ensure his or her surviving spouse gets absolutely nothing upon his or her death but cutting the surviving spouse out of a will is not one of them. So if the surviving spouse is domiciled in NC and finds they have been cut out of or inadvertently omitted from a will, the surviving spouse is allow to claim an "elective share" as set forth in simple layman terms directly in NCGS § 30-3.1 as follows (it really can not be explained any simpler):

(1) If the surviving spouse was married to the decedent for less than five years,

fifteen percent (15%) of the Total Net Assets.

(2) If the surviving spouse was married to the decedent for at least five years but

less than 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

Charles Evan Lohr

Answered
  • Estate Planning Lawyer
  • Raleigh, NC
  • Licensed in North Carolina

A: If the decedent and the surviving spouse were married less than five (5) years, the surviving spouse is entitled to fifteen percent (15%) of the decedent's net assets;

If the decedent and the surviving spouse were married at least five (5) years but less than ten (10) years, the surviving spouse is entitled to twenty-five percent (25%) of the decedent's net assets;

If the decedent and the surviving spouse were married to each other at least ten (10) years but less than fifteen (15) years, the surviving spouse is entitled to thirty-three percent (33%) of the decedent's assets; and

If the decedent and the surviving spouse had been married to each other fifteen (15) years or more at the time of the decedent's death, the surviving spouse is entitled to fifty percent (50%) of the decedent's net assets.

Sara W. Harrington agrees with this answer

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