People marrying for a second time often have children from a previous marriage. They also have property and assets accumulated during the first marriage. They typically want their property and assets to go primarily to the children of their first marriage when they die, rather than primarily to their new spouse (which then means it then goes to their new spouse’s children, even if they are from their former marriage).
But the law in North Carolina entitles a surviving spouse to up to 50% of the deceased spouse’s estate, even if it’s a second marriage, and even if the will says it’s primarily to go to the children from the first marriage.
The Former Elective Share Statute
Under North Carolina’s former statute, the portion of the deceased spouse’s estate that went to the surviving spouse depended on three factors:
1. Whether the surviving spouse was the decedent’s first spouse
2. Whether the deceased spouse had children from a previous marriage
3. Whether the deceased had children with the surviving spouse
Depending on these factors, a surviving spouse could be entitled to anywhere from one-sixth to one-half of the deceased spouse’s assets. Generally, if no children were born during the second marriage, the surviving spouse of a second marriage would be entitled to one-sixth of the deceased’s spouse’s assets if they didn’t like what they otherwise received in the will.
The New Elective Share Statute
The new law eliminates these three factors. Now, the only factor used to determine the portion of the estate that a spouse may claim, if they don’t like what is in the deceased spouse’s will, is the length of the marriage. The longer the deceased spouse and the surviving spouse were married, the larger the elective share. The share is determined as follows:
1. If the marriage was for less that five years, then the share is 15%
2. If the marriage was for five to ten years, then the share is 25%
3. If the marriage was for ten to 15 years, then the share is 33%
4. If the marriage was for more than 15 years, then the share is 50%
How can you prevent this result?
People with grown children who are marrying for the second time will typically want to have a prenuptial agreement in order to waive their right to claim their statutory share. This type of waiver cannot be done in a will. It requires a separate, properly drafted and executed prenuptial agreement, or, if the parties are already married, a post-nuptial agreement. The wavier can be partial, in which case the waiver of the elective share is contingent on the deceased spouse leaving some agreed upon amount to the surviving spouse, or it can be a complete waiver.