When 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 Carolina
If 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:
- If the person who dies is not survived by a child, a grandchild, or a parent, the spouse takes the entire estate, both real and personal property.
- If the person who dies is not survived by a child or grandchild, but is survived by a parent, the spouse takes a one-half interest in the real property and the first $100,000 plus one-half the balance of the personal property.
- If the person who dies is survived by only one child, or by no child but by a grandchild(ren) of only one deceased child, the spouse takes a one-half interest in the real property and the first $60,000 plus one-half of the balance of the personal property.
- If the person who dies is survived by more than one child, a grandchild(ren) or more than one deceased child, or a child and a grandchild(ren) of a deceased child, the spouse takes a one-third interest in the real property, and the first $60,0000 plus one-third of the balance of the personal property.
North Carolina’s Elective Share
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:
- Less than five years, the surviving spouse takes 15% of the Total Net Assets
- At least five years but less than 10 years, the surviving spouse takes 25% of the Total Net Assets
- At least 10 years but less than 15 years, the surviving spouse takes 33% of the Total Net Assets
- More than 15, the surviving spouse takes 50% of the Total Net Assets.
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.
North Carolina’s Year’s Allowance
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
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:
- A life estate in a one-third interest of all real estate of which the deceased spouse owned during marriage; or
- An elective life estate in the usual dwelling house plus fee simple ownership in the household furnishings
North Carolina’s Homestead Exemption
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.
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