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Elder Law Articles

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What Happens If My Spouse Doesn't Leave Me Anything In The Will?

Unfortunately sometimes a husband or wife will cut their spouse out of their Will or leave them very little. This often occurs in cases in which one or both parties have adult children from a prior marriage and one spouse wants all of his or her assets to go to his or her children. 

In North Carolina, a surviving spouse has the right to claim what is called an Elective Share of their deceased spouse's estate regardless of the terms of the Will. N.C.G.S. 30-3.1 provides the following:

"If a decedent dies on or after October 1, 2013, his or her surviving spouse is entitled to claim an elective share of his or her Total Net Assets of (i) 15% if married less than 5 years, (ii) 25% if married at least 5 years but less than 10, (iii) 33% if married at least 10 years but less than 15, or (iv) 50% if married at least 15 years."

It is important to note that there are strict procedural requirements that must be met in order to successfully claim an elective share, including a time limit in which the right must be claimed.

There are additional statutory protections, in addition to other estate planning tools, that can be utilized for the benefit of surviving spouses. These statutory protections include the right to a Year’s Allowance (first $30,000.00 of personal property ahead of creditor claims) and, if the decedent died intestate (without a valid will), to claim a life estate (instead of the intestate share as provided by law) in 1/3 of the value of the real property owned by the deceased spouse during the marriage. 

Dana Wilson
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