When it comes to estate planning, one common question is: Can your spouse leave you out of their will, legally? The short answer is yes, but it’s not that simple. If you live in North Carolina, state laws provide certain protections for surviving spouses, even if they’ve been partially or entirely disinherited.
In this blog, we will break down how wills work, spouses’ rights, and how you can protect yourself or plan your estate thoughtfully.
What Happens if There’s No Will?
A will is one of the most important legal documents you can create. It outlines exactly how you want your assets to be distributed when the time comes. Without a will your assets will be distributed according to North Carolina’s intestacy laws, meaning the courts will decide how your assets are divided.
That’s why creating a will, or another estate planning tool like a trust, with an experienced attorney is so important. If you’re married these laws guarantee certain rights to surviving spouses, but having a clear will in place can prevent a lot of unnecessary stress and uncertainty for your loved ones.
Can a Spouse Be Disinherited in North Carolina?
The good news for surviving spouses in North Carolina is that state law protects them, even if their spouse tries to leave them out of their will. Thanks to North Carolina’s elective share law, a surviving spouse is entitled to claim a portion of their deceased spouse’s estate, even if the will says otherwise.
The portion a spouse can claim depends on how long they were married:
- Less than 5 years: 15% of the estate
- 5 to 10 years: 25% of the estate
- 10 to 15 years: 33% of the estate
- 15 years or more: 50% of the estate
This includes the net assets of the spouse’s estate, such as bank accounts, retirement funds, and even life insurance policies, no matter who the listed beneficiary is. So, even if your spouse tried to exclude you from their estate plan, the law will help you receive what you are entitled to.
What If You’ve Been Partially Disinherited?
If you’ve been partially disinherited, you’re not out of options. You can file a legal claim so that you receive the portion of the estate guaranteed under the elective share law. For example, if a will only leaves you 10% of the estate after 10 years of marriage, you can claim an additional 23% to meet the 33% threshold required by law.
Planning Around the Elective Share
If you’re creating an estate plan and want to make sure everything is handled fairly, there are a couple of ways to address the elective share requirements:
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Marital Trusts
A marital trust is a great way to meet the elective share requirements to meet your broader estate planning goals.
A marital trust provides income for the surviving spouse to cover their maintenance, support, and health. A trustee, who must be “non-adverse,” meaning they don’t benefit from the trust, manages the funds. After the surviving spouse passes away, the remaining assets can go to other family members.
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Elective Share Waivers
Another option is an elective share waiver, which allows a spouse to waive their right to the elective share, either partially or completely. This is usually done through a prenuptial or postnuptial agreement.
For the waiver to hold up in court, it must be voluntary and in writing. Both parties must also fully disclose their assets, unless the waiver explicitly states that no disclosure is necessary. Postnuptial waivers are usually partial, as fully waiving elective share rights after marriage is less common.
How an Estate Planning Attorney Can Help You
Estate planning isn’t just about legal documents. It’s about making sure your family is taken care of and avoiding unnecessary stress down the road. North Carolina’s elective share laws can be confusing, which is why working with an experienced estate planning attorney is so important.
At NC Planning, we’re here to help you create a plan that protects your loved ones and honors your wishes. Whether you need a simple will, a marital trust, or advanced estate planning tools, we’ll work with you to create a plan that meets your needs.
Planning Your Estate
A good estate plan goes beyond distributing assets, it also prepares you and your loved ones for the unexpected. That’s why we recommend including advance directives in your plan, like healthcare powers of attorney and financial powers of attorney. These documents allow your loved ones to act on your behalf if you’re unable to.
Get Started on Your Estate Plan
While the future is uncertain, having the right estate plan in place provides peace of mind, knowing your family will be well cared for. Whether you’re just starting out or need to update an existing plan, the team at NC Planning is here to help.
Contact us today to schedule a consultation and protect what matters most.
