NC Elective Share: What Surviving Spouses Are Entitled To
When a Will Isn’t the Final Word on a Spouse’s Inheritance
North Carolina law gives people broad freedom to leave their assets to whoever they choose. But that freedom has one major limit when it comes to a surviving spouse: you cannot completely disinherit your spouse through a will.
NC’s elective share statute (NC General Statutes Section 30-3.1 through 30-3.6) gives a surviving spouse the right to claim a minimum share of the deceased spouse’s estate, regardless of what the will says. Even if the will leaves the surviving spouse nothing, or leaves them significantly less than the statute provides, the spouse can reject those terms and elect to take their statutory share instead.
This protection exists because North Carolina recognizes that spouses typically contribute to building marital wealth together, and that a will written late in a troubled marriage, or influenced by others, should not be the sole arbiter of a spouse’s economic fate.
The Elective Share Formula in NC
The elective share amount in North Carolina is not a fixed percentage. It is a graduated formula based on the length of the marriage. The longer the marriage, the larger the elective share.
Under NC General Statutes Section 30-3.1(a), the elective share is calculated as a percentage of the “Total Net Assets,” which is defined broadly to capture not just the probate estate but also many non-probate transfers. The percentages are:
| Years of Marriage | Elective Share Percentage |
|---|---|
| Less than 5 years | 15% |
| 5 but less than 10 years | 25% |
| 10 but less than 15 years | 33% |
| 15 years or more | 50% |
A spouse married for 20 years who is left nothing in the will is entitled to 50% of the Total Net Assets. A spouse married for 3 years is entitled to 15%.
This graduated structure reflects NC’s view that the longer the marriage, the more the spouses have built their lives (and wealth) together, and the stronger the surviving spouse’s equitable claim.
What Are “Total Net Assets”?
The term “Total Net Assets” is broader than just the probate estate. This is one of the most important and often misunderstood aspects of NC’s elective share statute.
NC General Statutes Section 30-3.2 defines Total Net Assets to include:
- The augmented estate: The value of the probate estate after paying debts, expenses, and prior claims
- Non-probate transfers to third parties: Assets that passed outside of probate to people other than the surviving spouse within two years before death (including certain irrevocable trust transfers, joint accounts with right of survivorship funded by the deceased, and other death-time transfers)
- Non-probate transfers to the surviving spouse: Assets that passed outside of probate directly to the surviving spouse (life insurance, joint accounts, beneficiary designations)
Assets that already passed to the surviving spouse (through joint tenancy, beneficiary designations, etc.) are credited against the elective share amount. The surviving spouse is entitled to the elective share amount in total, counting both what they already received and what they need to receive to reach the statutory minimum.
Why this matters: If a deceased spouse tried to defeat the elective share by transferring assets into non-probate accounts shortly before death, NC law looks back at those transfers (within two years for transfers to third parties) and includes them in the calculation.
What Counts as a Credit Against the Elective Share?
Before calculating how much more the surviving spouse is entitled to receive, NC law credits amounts already received from the estate:
- Assets passing to the surviving spouse through beneficiary designations (life insurance, retirement accounts, payable-on-death accounts)
- Property passing to the surviving spouse through joint tenancy with right of survivorship
- Assets passing to the surviving spouse through trusts
- Any bequest or devise to the surviving spouse under the will
The elective share is the total amount the surviving spouse is entitled to. If they already received enough through non-probate transfers, the elective share claim against the probate estate may be small or even zero.
The 6-Month Filing Deadline
This is the most time-critical aspect of the elective share: the surviving spouse must file a written claim for the elective share within six months of the date the will is admitted to probate (or, if there is no will, within six months of the administrator’s appointment).
Under NC General Statutes Section 30-3.4, missing this deadline extinguishes the right to elect. The surviving spouse cannot come back a year later and decide they want to claim the elective share. The deadline is strict.
If the surviving spouse is considering electing the elective share, they should consult an NC probate attorney promptly after the estate is opened. The analysis can be complex, and six months goes quickly when grief and other estate matters compete for attention.
See also our article on surviving spouse rights in NC probate for a broader overview of spousal protections.
How the Elective Share Interacts With the Will
When a surviving spouse exercises their right to the elective share, the will is not invalidated. Instead, the bequests under the will are reduced proportionally to fund the elective share.
Example: Maria’s will leaves her entire estate to her adult children from a prior marriage and leaves nothing to her husband of 17 years, James. When Maria dies, James elects the elective share. The elective share is 50% of the Total Net Assets.
The estate is valued at $800,000 total (including non-probate assets). James has already received $100,000 from a life insurance policy where he was the beneficiary. His elective share is 50% of $800,000 = $400,000. He has already received $100,000, so he is entitled to an additional $300,000 from the probate estate.
The $300,000 is paid to James first (as a priority over the will’s bequests). Maria’s children receive the remainder. Each child’s bequest is reduced proportionally to fund James’s elective share.
When the Elective Share Is Waived: Prenuptial and Postnuptial Agreements
A surviving spouse can waive their elective share rights through a valid prenuptial agreement (signed before marriage) or a postnuptial agreement (signed during marriage). NC General Statutes Section 52B-7 governs the requirements for valid marital agreements.
For a waiver of the elective share to be enforceable in NC:
- The agreement must be in writing and signed by both parties
- It must be entered voluntarily, without duress or coercion
- Each party should have made fair and reasonable disclosure of their assets and financial circumstances (or waived disclosure in writing)
- Each party should have had the opportunity to consult independent legal counsel
Courts will examine the circumstances of the agreement if the surviving spouse later challenges it. Agreements signed shortly before marriage with little time for review, or where one party was not represented by an attorney, are more vulnerable to challenge.
If a valid prenuptial agreement waives the elective share, the surviving spouse has no right to elect against the will, regardless of the marriage’s length or the estate’s value.
Elective Share vs. Year’s Allowance vs. Intestate Share
The elective share is one of several rights a surviving spouse may have. It is important to understand how these interact:
Year’s allowance: The right to receive up to $60,000 from the estate for support during the administration period. This is available regardless of the will’s provisions and is paid before general creditors. It is separate from and in addition to the elective share.
Homestead exemption: Protects up to $35,000 (or $60,000 for those 65+) of home equity from unsecured creditors. Also separate from the elective share.
Intestate share: What the surviving spouse would receive if there were no will. The elective share is not the same as the intestate share, though in some cases they overlap. For more on intestate succession, see our article on NC intestate succession: who inherits without a will.
The surviving spouse can typically claim the year’s allowance and homestead exemption along with electing the elective share. Consulting an NC attorney ensures the surviving spouse claims all of the rights they are entitled to.
Should a Surviving Spouse Elect the Elective Share?
The decision to elect is not automatic. Sometimes, a surviving spouse is better off accepting what the will provides (if it is generous) than electing the statutory share. The analysis requires:
- Calculating the Total Net Assets (including non-probate transfers)
- Calculating the elective share percentage based on years of marriage
- Crediting non-probate assets already received
- Comparing the elective share entitlement to what the will actually provides
Only after running these numbers can you determine whether electing produces a better outcome. In some cases, particularly where the surviving spouse is the primary beneficiary of several life insurance policies or joint accounts, they may have already received more than the elective share entitles them to.
Tax implications also matter. The elective share may have different income tax or estate tax consequences than assets passing under the will. A CPA and an NC estate attorney should both be consulted before making the election.
How Afterpath Supports Surviving Spouses and Executors
Whether you are a surviving spouse considering your options or an executor whose estate plan is being affected by a spousal elective share claim, Afterpath is built to help you navigate the process.
Pathfinder explains the elective share formula, the filing deadline, and what documents are needed to calculate the Total Net Assets. The guidance is NC-specific and plain-language, cutting through the legal complexity.
Afterpath’s task management system tracks the six-month election deadline and other critical dates for the estate. Missing this deadline is irreversible, and Afterpath makes sure it stays in view.
The document vault stores the will, trust documents, beneficiary designation confirmations, life insurance policies, and all other documents needed to calculate the Total Net Assets accurately. Organizing these documents efficiently is essential when working with attorneys on the elective share analysis.
The NC compliance engine ensures the estate is administered in compliance with NC’s requirements during the period when an elective share election is pending, including the proper sequencing of creditor payments and distributions.
Afterpath’s professional marketplace can connect you with NC estate attorneys who specialize in spousal rights and elective share calculations when the numbers and the stakes make professional guidance essential.
Frequently Asked Questions
Q: My husband died and left everything to his children from a prior marriage. Do I have any rights?
A: Yes. If you were legally married to him at the time of his death, you have the right to claim the NC elective share. Depending on how long you were married, you are entitled to 15% to 50% of the Total Net Assets. You also have the right to a year’s allowance, the homestead exemption, and potentially a life estate in the primary residence. Consult an NC probate attorney immediately, as the six-month deadline to file the election begins when the will is admitted to probate.
Q: How is the length of the marriage calculated?
A: NC law calculates the length of marriage from the date of marriage to the date of death. A marriage of 14 years and 11 months would fall in the “10 but less than 15 years” category (33%), not the 15+ years category.
Q: My wife and I signed a prenuptial agreement before we married. Does that affect my elective share rights?
A: It depends on what the prenuptial agreement says and whether it is enforceable under NC law. If the agreement includes a valid waiver of elective share rights and meets the NC statutory requirements for marital agreements, your elective share rights may be limited or eliminated. An NC attorney should review the agreement to determine its enforceability.
Q: Can the elective share be claimed by the surviving spouse’s guardian or conservator if the spouse lacks capacity?
A: Yes. Under NC General Statutes Section 30-3.4, if the surviving spouse lacks legal capacity, the right to elect may be exercised by the spouse’s guardian or attorney-in-fact (under a durable power of attorney). The same six-month deadline applies.
Q: Can Afterpath help me calculate whether electing the elective share makes sense?
A: Afterpath’s Pathfinder can walk you through the framework and help you organize the financial information needed for the calculation. For the final decision, an NC estate attorney should review the numbers and advise on tax implications. Join the waitlist at /waitlist/ to get early access.
Know Your Rights Before the Deadline Passes
The six-month deadline to claim the NC elective share is unforgiving. Once it passes, the surviving spouse’s right to elect is gone. If you are a surviving spouse who feels you have been treated unfairly under a will, or if you are an executor who needs to understand how a potential election affects the estate, act now.
Afterpath provides the tools and guidance to help you understand NC’s spousal rights, meet every deadline, and make informed decisions. Pathfinder guides you through the process, the task management system keeps the deadlines in view, and the document vault keeps every critical record organized.
Join the Afterpath waitlist at /waitlist/ and make sure every surviving spouse receives what NC law entitles them to.
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