What are the Rights of a Surviving Spouse in a Probate/Estates Proceeding?
DS = Deceased Spouse, SS = Surviving Spouse, YA = Year’s Allowance, ES = Elective Share
Q: The DS wrote a Will that explicitly excludes (also known as disinheriting) the SS from receiving anything from the estate of DS. Does the SS have any right to the estate assets?
A: Yes, unless the SS formally waived their rights by written contract or is legally barred from inheriting, the SS has the statutory right to inherit under the YA and ES options (more on that below).
Q: How can the SS be legally barred from inheriting from the estate of the DS?
A: Yes. There are three ways the SS can be legally barred from inheriting, even if the DS left a Will giving the SS estate assets:
If the SS formally waived their rights to inherit, including their right to a YA or ES by written contract (such as a pre- or post-marital agreement, also known as a “prenup”, relevant statutes: www.bit.ly/NCGS-years-allowance-waiver and www.bit.ly/NCGS-elective-share-waiver),
If the marriage between the SS and DS ended in divorce or annulment (must be finalized, not just in process, relevant statutes www.bit.ly/NCGS-will-after-divorce-annul), or
If the SS caused the death of the DS (relevant statutes: www.bit.ly/NCGS-slayer-statutes).
Q: The DS had a Will giving assets to the SS, but they later separated, and the DS and SS were no longer together at the time the DS died. Does the SS still get the assets specified in the Will?
A: Unless there was a court-issued judgement of divorce or annulment (or one of the other legal bars, as noted above, applies), the SS has the rights to the assets specified in the Will and, depending on the specific facts, may also have a right to a YA and/or ES. Spousal inheritance rights are not terminated during a separation or while a divorce or annulment case is pending.
Q: The DS told other people they didn’t want the SS to inherit anything. Can this be used as evidence to prevent the SS from inheriting from the estate of the DS?
A: Probably not. North Carolina has strict laws regarding what constitutes a valid Will and Codicil (an amendment to an existing Will). General conversations and written communications (in texts, emails, and letters) rarely meet the requirements of a Nuncupative (spoken/oral) Will, Holographic (handwritten) Will, or an Attested (witnessed) Will. Relevant statutes: www.bit.ly/NCGS-valid-wills.
More about the YA & ES Court Processes
Presuming the Deceased Spouse (DS) died with a Will* in place, the Surviving Spouse (SS) may be eligible to receive more than DS’s Will provides using the Year’s Allowance (YA) and Elective Share (ES) court processes. The following is a brief, general summary of each for informational purposes only. Please consult with an attorney to determine your (or your spouse’s) individual rights under these laws.
Year's Allowance (YA) – regardless of whether a SS is a named beneficiary of DS’s Will, they have the right to $60,000.00 (or whatever the statutory value is at that time) after DS’s death, plus whatever DS has left them in their Will if anything. If DS/SS has surviving minor children, SS has a right to an additional $5,000.00 per child. The practical reason for the YA is to ensure that SSs (and minor children) have sufficient funds to live on until distributions are made (at a later stage of the estate/probate case process). The YA funds/assets only come from the assets subject to the terms of DS’s Will. Certain time limits may apply for beginning the YA process.
YA is an optional process for SS (not an automatic part of the estate/probate court process).
The YA can be waived in advance during both spouses’ lives through a contract (such as a pre- or post-marital agreement).
Under certain extreme circumstances, a SS may be ineligible for/denied a YA.
Relevant statutes: www.bit.ly/NCGS-years-allowance
Elective Share (ES) – this is an optional process for SS (not an automatic part of the estate/probate court process) and is separate from YA. The ES protects a SS who does not get a fair share of the DS’s entire estate (and here, the "entire estate" includes assets subject to the Will, assets held in trust, retirement account proceeds, life insurance proceeds, etc.).The "fair share" is determined by state statute, between 15-50%, based on the length of the marriage. ES can happen with or without YA. However, if SS receives a YA, that amount will count towards their total “fair share.” SS must claim an ES within 6 months of the Court opening an estate case for DS.
ES can be waived in advance during both spouses’ lives through a contract (such as a pre or post-marital agreement).
Under certain extreme circumstances, a SS may be ineligible for/denied a YA.
Relevant statutes: www.bit.ly/NCGS-elective-share
*If DS died without a Will, the estate/probate process called intestacy may occur. The SS still has a right to the YA and may have a right to the ES, depending on the specific facts of the situation. Learn more about intestacy here.