Can My Spouse Exclude Me from Their Will? Understanding Your Rights and Options!
Wills play a crucial role in shaping the distribution of assets after an individual’s passing, allowing them to express their wishes clearly. However, when a spouse attempts to disinherit their partner or overlook their financial well-being in their will, complex legal issues can arise. This blog highlights the Elective Share laws that protect surviving spouses in such situations and outlines how CaMu Document Services Inc. can provide guidance and support during these challenging times.
Elective Share Laws
Elective Share laws aim to safeguard married individuals from being entirely disinherited by their spouse in a will. These laws offer a recourse for surviving spouses to claim a portion of the deceased spouse’s estate, even when they are not explicitly named as beneficiaries in the will. The Elective Share can be claimed from one of three sources:
- The Deceased Spouse’s Will: If the will neglects to provide for the surviving spouse, the Elective Share can come into play.
- Non-Probate Assets: This includes life insurance, retirement accounts, or annuities for which the surviving spouse is designated as the beneficiary. Even if the will excludes the spouse, they may still have a rightful claim to these assets.
- Joint Ownership with Right of Survivorship: When the surviving spouse is a joint owner of the deceased spouse’s bank accounts, investment accounts, or real estate with a right of survivorship, the Elective Share laws can protect their interests.
In essence, if the surviving spouse has already received their entitled Elective Share from one of the sources mentioned, a formal claim for Elective Share may not be necessary. This means that even if a testator attempts to disinherit their spouse in the will, but the spouse still receives their rightful portion through another avenue, the Elective Share law comes into play.
Calculating the Elective Share
The calculation of the Elective Share in North Carolina changed on October 1, 2013, simplifying the process by considering only the duration of the marriage. The Elective Share rates in North Carolina are as follows:
- If the marriage lasted less than five (5) years, the surviving spouse is entitled to 15 percent of the deceased spouse’s net assets.
- Marriages of at least five (5) but fewer than ten years allow the surviving spouse to claim 25 percent of the net assets.
- In marriages lasting at least ten years but fewer than 15 years, the surviving spouse’s entitlement is 33 percent of the net assets.
- For marriages that endure 15 years or more, the surviving spouse is entitled to 50 percent of the deceased spouse’s net assets.
Making an Elective Share Claim
To claim the Elective Share, the surviving spouse must act within the six (6) months following the issuance of letters of administration related to the deceased’s will or intestate proceeding. North Carolina’s statute of limitations may bar any claims beyond this time frame. The claim must be submitted to the Clerk of Superior Court in the appropriate county, following specific procedures to notify the decedent’s estate and provide proof of the decedent’s net assets.
The Role of CaMu Document Services Inc.
CaMu Document Services Inc. focuses on helping individuals and families navigate the complexities of estate planning and the protection of their financial futures. Our founders, Dr. Rafeek Mikhail, C.E.O. & Founder, and Mrs. Mary Mikhail, C.F.O. & V.P., bring a wealth of experience and expertise to the field. Dr. Rafeek Mikhail and Mrs. Mary Mikhail have invested plenty of time in developing a strong background in estate planning, living trusts, and the financial sector, demonstrating a deep commitment to customer satisfaction.
The team of skilled estate law attorneys from CaMu takes pride in assisting you throughout the distribution of assets after a loved one’s passing. They provide guidance, ensure that your Elective Share claim is filed correctly, and help you receive the amount to which you are entitled under the law.
If you have concerns about your rights as a surviving spouse or are facing issues related to your Elective Share, feel free to reach out to CaMu and feel the difference in securing your family’s financial future.