Surviving Spouse Disinherited? How to Get Your Fair Share of the Estate

The North Carolina elective share law is a powerful set of rules that ensures surviving spouses can inherit from their deceased spouse. 


The Will says you get nothing!

The Spousal Elective Share law says you get up to half of the estate!


His wife died less than a week ago, and he opens a letter from a lawyer demanding that he get out of his house.  His wife’s Will left everything to his in-laws.  After decades of marriage, he has been disinherited from his wife’s estate?  The in-laws are sharpening their knifes and circling.  Can anything be done?  Thankfully there is a law in North Carolina to protect surviving spouses from disinheritance – the spousal elective share law.

The North Carolina elective share law is a powerful set of rules that ensures surviving spouses can inherit from their deceased spouse.  It creates fairness in how the estate is divided and keeps some surviving spouses from falling into poverty.  The amount of the spousal elective share depends upon the length of the marriage:

Length of Marriage Elective Share % of Total Assets
Less than 5 years 15%
5 – 10 Years 25%
10 – 15 Years 33%
15+ Years 50%

A very important part of this law is that the share comes out of something called “Total Assets.”  Total Assets is much more than what is in the probate estate (property that is transferred by the Will).  It includes assets transferred into certain types of trusts, accounts with beneficiary designations, such as retirement, investment, and bank accounts, and life insurance proceeds.

[Note:  If you are a surviving spouse, please consult with a fiduciary litigation attorney as soon as possible so that you can secure your rights.  The elective share law is complex, and has strict deadlines and formal procedures.] 


The surviving spouse must file a petition for their elective share within six months of the appointment of the estate’s executor or other personal representative.  Most people are surprised to learn that someone could start an estate proceeding for the deceased spouse, and the surviving spouse might not be notified, if the Will does not leave anything to the surviving spouse.  The danger is that the six month deadline for filing for the elective share might start running without the surviving spouse knowing the clock has started.

There is a 6 month deadline for filing for an elective share.

(6 months from the appointment of the estate’s executor or other personal representative.)


When a surviving spouse files an elective share petition, often some or all of the “total assets” are already in the hands of other people.  The elective share statute calls these folks “Responsible Persons.”  “Responsible Persons” are usually shocked and dismayed to discover that they must turn over assets to the estate for payment of the elective share.  Sometimes people are not cooperative in sharing information about assets or turning them over to the estate, and formal court procedures are needed to force people to provide information and surrender assets.

In some elective share cases the surviving spouse and the “Responsible Persons” are able to negotiate a settlement that is good for everyone involved.  For example, The surviving spouse may want to keep the marital home (which was owned by the deceased spouse), instead of taking their share of cash assets, and the “Responsible Persons” may like that because they don’t have to wait for a sale of the home to collect their part of the estate.  The Court may send the parties to mediation if they need help in cooperating to settle the elective share.

Spouses get disinherited for a variety of reasons, sometimes intentional and other times not.  In situations with a marriage later in life, one or both may already have a Will. Many people put off making and updating Wills, and sometimes a person intends to update a Will to include a new spouse, but never does it.  In other cases the person making the Will may want to pass everything to children from a previous relationship.  There are also situations of hostile in-laws that pressure the related spouse to disinherit the non-related spouse, or “help” that to happen during a period of dementia or other vulnerable state.

Whatever the reason, when a surviving spouse has been cut out of an estate plan, in many cases the elective share law will enable that person to collect a significant share from the estate.  If you are a surviving spouse in this situation, please consult with a fiduciary litigation attorney as soon as possible so that you can secure your rights.  The elective share law is complex, and has strict deadlines and formal procedures.


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