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Spousal Disinheritances and the Elective Share – 3 Questions

Question 1: Can I disinherit my spouse?

A spouse who doesn’t want to leave any of his or her property to the other spouse is an unfortunately common situation. However, states have laws which prevent surviving spouses from being completely disinherited. These laws are known as spousal share or elective share laws. If a surviving spouse is not satisfied with the inheritance left behind by a deceased spouse, the law provides the surviving spouse the ability to choose, or elect, to receive a certain amount of a deceased spouse’s estate.

Question 2: How much do elective share laws give?

That depends. In North Carolina, a surviving spouse is entitled to one-half of the total net assets a deceased spouse leaves behind as long as there are no surviving children. If there are surviving children, the surviving spouse is entitled to either one-half or one-third, with the rest divided between the children or their descendants.

Question 3: Can you choose not to take the elective share?

Absolutely. The elective share allows the surviving spouse to choose how much he or she wants to take from the estate. If, for example, the deceased spouse left behind a will which left all the property to the surviving spouse, the spouse can choose to take the entire estate or choose to take a the smaller elective share. Alternately, spouses can choose to not take any inheritance at all, known as disclaiming an inheritance.

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