Rights of a Surviving Spouse in North Carolina

When a married North Carolina resident dies, their surviving spouse is entitled to a defined share of their real and personal property and to receive support payments during the administration of the estate. Such rights are available to the surviving spouse whether or not the deceased spouse leaves a valid will, including one that would transfer a different share of their property to, or completely disinherit, the surviving spouse.

No Valid Will – The Surviving Spouse’s Intestate Share

Many ,” which means they die without any valid will. Others leave a valid will, but the will does not provide for the disposition of their property. In either case, the property which is not transferred pursuant to a valid will passes according to North Carolina’s intestacy laws.

The surviving spouse’s intestate share depends on whether the deceased spouse is also survived by any child, any “lineal descendant” (meaning, the child, grandchild, etc. of any deceased child(ren) and/or any parent:

• If there is no surviving child, lineal descendant of any deceased child or parent, then the surviving spouse takes all of the real property and personal property;
• If there is no surviving child or lineal descendant of any deceased child, but there is any surviving parent, then the surviving spouse takes a one-half interest in the real property and the first $100,000 plus half of the balance of the personal property;
• If there is only one surviving child, or there is no surviving child but there is any surviving lineal descendant of only one deceased child, then the surviving spouse takes a one-half interest in the real property and the first $60,0000 plus one half of the balance of the personal property; and if there are more than one surviving child, or there is only one surviving child and any surviving lineal descendant of any deceased child, or there is no surviving child but there are surviving lineal descendants of two or more deceased children, then the surviving spouse takes a one-third interest in the real property and the first $60,000 plus a third of the balance of the personal property.

Overriding a Valid Will or the Intestate Share – the Surviving Spouse’s Right to an Elective Share

When a married North Carolinian dies with a valid will, even a will that would transfer some of their property to their surviving spouse, or dies without a valid will, the surviving spouse has a statutory right to override the terms of the will or their right to an intestate share, whichever is applicable, and to take instead an “elective share” of the deceased spouse’s property, provided that the surviving spouse has not previously waived that right in the prenuptial or postnuptial agreement. To take the “elective share,” the surviving spouse must file a claim for their elective share within (an executor or administrator) is formally authorized.

The elective share is a percentage of the deceased spouse’s “Total Net Assets” reduced by the “Net Property Passing to the Surviving Spouse.” Calculations of “Total Net Assets” and “Net Property Passing to the Surviving Spouse,” which can be complicated, are made pursuant to the detailed provisions of the elective share laws.

The applicable percentage of Total Net Assets used in determining the surviving spouse’s elective share depends on the duration of their marriage to the deceased spouse. The applicable percentage ranges from a minimum of 15% when the marriage lasted less than 5 years to a maximum of 50%, when the marriage lasted for 15 years or longer.

Taking a Life Interest in Lieu of Either an Intestate Share or an Elective Share

Another option available to the surviving spouse under North Carolina’s laws is to take neither their intestate share nor their elective share, as described above, but instead to take either:

• A life estate in one-third of all real estate which the deceased spouse owned at any time during the marriage, excluding any of such real estate which the surviving spouse previously joined with the deceased spouse in conveying or otherwise waived, released or conveyed their interest, or
• A life estate in the “usual dwelling house” owned by the deceased spouse and occupied by the surviving spouse at the time of the deceased spouse’s death plus fee simple (meaning, complete) ownership of all of the household furnishings.

The Year’s Allowance for a Surviving Spouse

Like other states, North Carolina has laws that provide for payments from the deceased spouse’s estate to the surviving spouse to cover their necessities. This helps the surviving spouse continue to cover necessities while the assets of the estate are likely to be “tied up” in the probate process.

If the surviving spouse has not previously waived their rights in a prenuptial or postnuptial agreement and

If you have questions about, or need legal assistance in connection with, the rights of a surviving spouse or any other aspects of estate planning and administration in North Carolina, contact us at Kelly & West and arrange for a free consultation.