The Surviving Spouse

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If you are married, your estate plan should take into account your spouse's rights in your separately-owned property. Property owned jointly with your spouse with a right of survivorship will automatically go to your spouse if you die first, regardless of what is written in your will or the laws that control who gets your property if you die without a will. Spouse's share without a will Spouse's election to take a life estate Spouse's share with a will Right to dissent from the will Joint property ownership Summary probate proceeding for surviving spouse

Spouse's share without a will

• The surviving spouse inherits 100 percent of the estate if the deceased spouse does not have parents, children, or descendants of children surviving him or her.
• If one or both parents survive the deceased spouse, but no children or descendants of children, the surviving spouse inherits the first $50,000 of personal property and one-half of the remaining personal property and one-half of all the real property in the deceased spouse's estate. Property owned by the spouses with a right of survivorship is not included in this calculation.
• If one child, or descendants from a deceased child, survive the deceased spouse, the surviving spouse inherits the first $30,000 of personal property and one-half of the remaining personal property and one-half of all the real property in the deceased spouse's estate. Property owned by the spouses with a right of survivorship is not included in this calculation.
• If two or more children, or descendants of children, survive the deceased spouse, the surviving spouse inherits the first $30,000 of personal property and one-third of the remaining personal property and one-third of all the real property in the deceased spouse's estate. Property owned by the spouses with a right of survivorship is not included in this calculation.

For a graphic depiction of the spouse's share, see section If You Don't Have a Will.

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Spouse's election to take a life estate

Instead of taking the intestate share as described in Spouse's Share Without a Will, the surviving spouse may choose to take a life estate in one third of the value of all the real property owned by the deceased spouse during the marriage. Real property in which the surviving spouse has given up his or her right to take an elective share is exempted. For example, if Wife sells a parcel of land that she owns solely in her name, Husband must sign the papers conveying the land in order to waive his right to take an elective share at her death.

If the home was owned by the deceased spouse, the life estate may include the home, regardless of its value. The surviving spouse must elect to include it, and he or she must occupy it at the death of the deceased spouse. This election would include the land upon which the house is situated, plus outbuildings, improvements, and easements on the land. This election would also include complete ownership of the household goods and furnishings.

The election to take a life estate must be made by filing notice with the clerk of superior court within a certain time frame based upon the happening of certain events. If the election is not made within the time allowed by law, the surviving spouse waives his or her right to make this election. If your spouse dies without a will, and he or she owns property, you need to see a lawyer as soon as possible to avoid losing your rights.

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Spouse's share with a will

A will provides more flexibility and control over the amount of property the surviving spouse is entitled to inherit. If you so choose, your surviving spouse can inherit 100% of your property under your will. Note: Leaving all of your property to your spouse may not be recommended if reducing estate taxes is one of your goals. Your attorney can advise you on this issue.

You cannot disinherit your spouse with a will. If your spouse does not receive a certain amount of your property at your death, he or she may have the right to dissent from your will.

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Right to dissent from the will

You cannot use your will to disinherit your spouse. Your spouse is entitled to receive a certain amount of your property at your death (the amount may vary, depending upon circumstances). If your spouse does not receive the amount he or she is entitled to under the law, he or she has the right to dissent from your will.

The amount of property your spouse is entitled to receive is calculated by adding together the value of property inherited under the will and the value of property passing to the spouse outside the will. For example, the value of proceeds of life insurance on the life of the deceased spouse payable to the surviving spouse passes outside the will, but is counted in determining if the surviving spouse has the right to dissent from the will.

If a surviving spouse has the right to dissent from the will, he or she is entitled to take the same share in real and personal property as if the deceased spouse had died intestate, except he or she is limited to not more than one half of the net estate. Thus, if there are no children, descendants of children, or parent(s) surviving the deceased spouse, the surviving spouse is entitled to receive one half of the net estate rather than 100%. The surviving spouse may also elect to take a life estate instead of the intestate share.

Note: If the surviving spouse is a second or successive spouse, he or she will take only half of that provided for the surviving spouse if the deceased spouse has children or descendants of children surviving him from a former marriage and there are no children or descendants of children surviving from the current marriage.

A spouse entitled to dissent from the will may do so by filing the dissent with the clerk of superior court of the county where the will is probated within six months after the personal representative is qualified by the court. Failure to file the dissent on time waives the right to dissent. See a lawyer immediately to preserve your rights.

Note: For estates of decedents dying on or after January 1, 2001, the surviving spouse will have the right to claim an elective share, rather than dissent from the will. The new law makes it more difficult to disinherit the surviving spouse using techniques other than a will.

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Joint property ownership

Property owned jointly by the spouses with a right of survivorship automatically passes to the surviving spouse, regardless of what is written in the will or the rules of law that apply if there is no will. Property with named beneficiaries, such as life insurance policies or IRAs, goes to the named beneficiary or beneficiaries, without regard to the will or the rules of law that apply if there is no will (unless the estate is named as the beneficiary).

For more information, see the section, Property Ownership.

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Summary probate proceeding for surviving spouse

If the surviving spouse is the sole beneficiary under the will, or the sole heir if there is no will, he or she may file a petition for summary administration with the clerk of superior court. If the clerk finds that summary administration is proper, the clerk enters an order to that effect and no further administration of the estate is necessary.

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References from North Carolina General Statutes.
28A-28-1, et seq. Summary administration where spouse is sole beneficiary.
29-14. Shares of surviving spouse.
29-30. Election of surviving spouse to take life interest in lieu of intestate share provided.
30-1. Right of dissent.
30-2. Time and manner of dissent.
30-3. Effect of dissent.
39-7. Instruments affecting married persons title; joinder of spouse; exceptions.

Effective for estates of decedents dying on or after January 1, 2001:
30-3.1. Right of elective share
30-3.2. Definitions
30-3.3. Property passing to surviving spouse
30-3.4. Procedure for determining the elective share
30-3.5. Recovery of assets by personal representative
30-3.6. Waiver of rights

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Prepared by Carol A. Schwab, J.D., LL.M.,
Professor and Extension Specialist, NC State University.

This publication is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not designed as a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in this publication are based solely on the laws of North Carolina in force on the date of publication.

Date: August 2000