The first part of any new year is a good time to revisit your existing estate plan. If you do not already have one in place, drafting a comprehensive will may be high on your resolution list. Either way, you should understand how North Carolina’s elective share rules may affect your estate plan.

If you have a husband or wife, you may worry that he or she may write you out of the will. Or, you may have some concerns about receiving less than your fair share. In North Carolina, elective share should put your mind at ease.

Elective share 

Husbands and wives do not always treat each other fairly when distributing assets in a will. Elective share mandates that some percentage of the estate’s assets go to the surviving spouse. How much you receive, though, depends on the length of your marriage. In North Carolina, the breakdown is as follows:

  • For a marriage that lasted under five years, the surviving spouse receives 15% of net assets
  • For a marriage that lasted between five and 10 years, the surviving spouse receives 25% of net assets
  • For a marriage that lasted between 10 and 14 years, the surviving spouse receives 33% of net assets
  • For a marriage that lasted more than 15 years, the surviving spouse receives 50% of net assets

The elective share provision requires partners to leave at least the above percentages to the surviving spouse. If he or she chooses, a husband or wife may elect to leave a greater share of the estate’s net assets to the survivor.

Superseding agreements 

You and your partner may not want to abide by the elective share paradigm. For example, you may want to leave fewer assets to your spouse so that your children receive more. If so, you can supersede the elective share requirement by drafting a marital contract, such as a prenuptial or postnuptial agreement. A trust may also accomplish your goals.

Having a well-drafted will is important for a variety of reasons. If you fear that your spouse may leave you with insufficient assets to get by, North Carolina’s elective share rules should quiet your concerns.