What is the Elective Share and why do you need to know about it?
The elective share can accidentally derail your estate plan, especially if you are planning on leaving your spouse nothing in your will. So, read on to find out how to avoid this mistake.
The laws of both North and South Carolina prevent a married person from disinheriting his or her spouse.
- Sometimes clients with blended families don’t want to leave everything to a current spouse. For example, clients may have property they want to leave to children from a prior marriage or keep in a certain bloodline. (For more information, see the prior blog post.) But how much do you have to leave your spouse? The answer varies from state to state. North and South Carolina each have different rules regarding the amount you must leave your spouse. These rules are rights accorded married persons.
- What happens if you ignore these rights and leave your spouse less than the required amount? In that situation, both states have laws entitling a spouse to claim a certain percentage of the deceased spouse’s estate. These laws are called “elective share” laws and allow your surviving spouse to set aside your will and inherit a certain percentage of your estate regardless of what your will says.
- The elective share entitles a spouse who is dissatisfied with the amount he or she received under a deceased spouse’s will to choose to take (elect) a percentage of the deceased spouse’s estate that is larger than what he or she received under the will. For example, if the will leaves the surviving spouse ten percent of the estate, by choosing to take the elective share, the surviving spouse can increase the share received to between fifteen and fifty percent of the deceased spouse’s estate in North Carolina if certain requirements are met.
- In North Carolina, the elective share depends on the length of the marriage. The North Carolina elective share starts at fifteen percent for a marriage of less than five years and increases to fifty percent for a marriage lasting at least fifteen years. (N.C.G.S. 30-3.1, Right of Elective Share) So if you are a resident of North Carolina at the time of your death, you can't leave your spouse less than fifteen percent of your estate even if you have been married for a short period of time. If you have been married for fifteen years or more, you cannot leave your spouse less than fifty percent of your estate.
- In South Carolina, the elective share is a fixed one-third of the deceased spouse’s estate regardless of the length of the marriage. (S.C. Code Ann. Section 62-2-201) So if you are a resident of South Carolina and your will is governed by South Carolina law, you must leave your spouse at least one-third of your estate.The calculation of the elective share can be complicated and the share may be reduced by certain other property received from the deceased spouse.
- Why does your state of residence care about what your spouse receives? The common law has traditionally held that spouses have a duty to support each other, especially with regard to certain basic expenses, like food, shelter, and medical care. At its most basic level, the goal of elective share statutes is to prevent a surviving spouse from being left destitute and thereby becoming a ward of the state.
- So, the takeaway is you can't disinherit your spouse. Even if you leave your spouse nothing in your will, your spouse is still entitled to part of your money. But what if both spouses agree in advance that they do not want to inherit anything from each other? Can one spouse change his or her mind later? In the next blog post, we will look at how a spouse can voluntarily waive the elective share and what happens if a spouse is left out of a will completely. In the meantime, if you have a legal question and would like to speak with Nancy, call 980-247-3011 to schedule a personalized consultation.
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