For various reasons, spouses often sign Wills that leave out their surviving husband or wife. In other words, a spouse is disinherited. Is this legal? Yes, but steps can often be taken to effectively get around the Will.

When your spouse signs a Will leaving you out, the Will itself is not automatically invalid. Instead, North Carolina law usually allows the surviving spouse to file for an “elective share”. In essence, you are not challenging the validity of the Will, but simply claiming your lawful share of your spouse’s assets. Years ago, this was called “dissenting” from the Will. Under current law, you are requesting an “elective share.” You are electing to take a share of your spouse’s assets.

Will Family Law Leave Spouse Out
We often see a husband leave his second wife out of his Will and instead leave everything to husband’s adult children from a prior marriage. Oftentimes, the children from the prior marriage are the ones who encourage their father to take such action. In such cases, the wife who was left out can file a request for her lawful share of her late husband’s estate. This is accomplished by petitioning a North Carolina Clerk of Court for an elective share. If the Will is being probated in Wake County, then you file your request for an elective share at the courthouse in Raleigh.

Effective October 1, 2013, there were significant changes made to the North Carolina elective share laws. For the first time, a surviving spouse’s lawful share of the deceased spouse’s estate will be determined based on how long the couple was married. Up until this year, all surviving spouses were to some degree grouped together, irrespective of the length of the marriage. With the new law, the North Carolina General Assembly has recognized the need to protect surviving spouses who have been married for longer periods of time.

To What Amount is your Spouse Entitled?

Under the new law, if you have been married for less than five years, then you will receive a smaller elective share. Meanwhile, if you have been married for over fifteen years, then you will receive the maximum allowed elective share. For marriages that lasted between five and fifteen years, the amount of the elective share is staggered depending on the overall length of the marriage.

If your spouse has left you out of his Will, then please let our Raleigh attorneys know if we can help. Call us at 919-615-2473. There are strict time periods for making a request for an elective share, and it can be a complicated process. Please note, there are many factors that affect a spouse’s ability to file for an elective share or receive a full elective share that are beyond the scope of this article. You should seek legal representation to get a full understanding of North Carolina’s elective share statutes.

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Terrell joined Kirk, Kirk, Howell, Cutler & Thomas, L.L.P. in 1994. His general practice includes civil litigation, general business representation, family law and workers’ compensation, as well as wills, estate planning, estate administration, and estate litigation.

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