The Surviving Spouse’s Intestate Share in North CarolinaWhen a husband’s wife dies, or when a wife’s husband dies, the spouse who is still alive is referred to as the surviving spouse for North Carolina estate planning purposes. In most cases, the person who dies leaves the majority of his or her property to this surviving spouse, whether it be through intestacy, a last will and testament, a trust, or some other non-probate instrument. However, in some instances, whether it be purposeful or accidental, the person who dies disinherits his or her surviving spouse; that is, leaves the surviving spouse little to none of his or her property.
This article discusses the various spousal protection statutes and doctrines that exist in North Carolina that serve to limit a person’s power to transfer his or her property at death. Specifically, the article will examine the surviving spouse’s right to receive support, and the surviving spouse’s right to share in the marital property, even when the spouse who has died disinherits him or her.
The Surviving Spouse’s Intestate Share in North CarolinaIf a person dies without a valid last will and testament, the person is said to have died intestate. Intestacy can be either complete or partial. Complete intestacy is where a person dies and leaves no valid will. Partial intestacy is where a person who dies leaves a valid will, but the will does not dispose of all of his or her property. In either case, when a person dies intestate, his or her property will pass according to North Carolina’s intestacy statutes, which are set forth in North Carolina General Statute (N.C.G.S.) 29-14.
As detailed in this statute, if the person who dies is survived by a spouse, the spouse will take in one of the following manners:
The surviving spouse of a person who dies with a valid last will and testament in North Carolina has a right to claim an "elective share." Nearly all states have enacted elective share statutes. Such statutes are put in place to protect a surviving spouse from being disinherited upon the death of a spouse who leaves the surviving spouse out of his or her will.
As defined in N.C.G.S. 30-3.1, the monetary amount of the elective share that a surviving spouse may claim is determined by the length of the marriage of the surviving spouse and the deceased spouse. Specifically, if the surviving spouse was married to the deceased spouse for:
It is also worth noting that the amount the surviving spouse takes is reduced by the value of Net Property Passing to the Surviving Spouse. While it is outside the scope of this article, the statutes detail how to calculate both the Total Net Assets and the Net Property Passing to the Surviving Spouse referenced herein.
All states, including North Carolina (N.C.G.S. 30-15 through 30-33), have statutory provisions that allow for the support and maintenance of a surviving spouse during administration of the estate. North Carolina calls these payments for support and maintenance, which are made from the decedent’s personal property, the “year’s allowance.” Every surviving spouse is entitled to a $60,000 allowance for a one-year period. If the decedent dies without a will, the allowance is in addition to the spouse’s intestate share. If the decedent left a will, the allowance is deducted against the share the surviving spouse is given under the will. The total of all allowances, including to those provided to minor children, cannot exceed one-half of the average annual net income of the decedent for the three years preceding his or her death.
Dower and curtesy are common law doctrines that have been abolished by most states, including North Carolina pursuant to N.C.G.S. 29-4. Even so, North Carolina preserves the benefit of dower for a surviving spouse, whether a widow or widower, in N.C.G.S. 29-30.
Under the statute, a surviving spouse who would be entitled to take (i) an intestate share because his or her spouse died without a valid will, or (ii) an elective share because his or her spouse died with a valid will, may instead choose to take either:
Put simply, the purpose of the homestead exemption is to ensure that a surviving spouse has somewhere to live. The North Carolina Constitution provides that the homestead exemption, which consists of a dwelling and outbuildings, is available to a surviving spouse, so long as he or she does not own a separate homestead. The period of the exemption begins after the owner’s death and continues while the owner’s children are minors. If the owner died leaving a surviving spouse but no minor children, then the exemption lasts until the surviving spouse remarries.
It is also important to note that because a homestead is not an estate, the protection afforded by the homestead exemption is only against creditors, not against the possibility that the property will be devised to another person.
If you are looking for wills, trusts, or estate planning assistance, you need to speak with an experienced estate planning attorney as soon as possible. Please contact us online or call our Charlotte office directly at 980-207-3355 to schedule your free consultation.
