NC’s New Elective Share – Should you consider a Prenuptial or Post-Nuptial Agreement?

If you are marrying for the second time, you may have children from a previous marriage. You might also have property and assets accumulated during your first marriage. Typically, you will want your property and assets to go primarily to the children of your first marriage at your death rather than primarily to your new spouse (which then means your assets would go to your new spouse’s children, even if they are from your new spouse’s former marriage).

However, the law in North Carolina says that if you die, your surviving spouse is entitled to up to 50% of your estate, even if it’s a second marriage and even if your will says your assets are to go to your children from your first marriage.

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:

  1. Whether the surviving spouse was the decedent’s first spouse;
    2. Whether the deceased spouse had children from a previous marriage; and
    3. Whether the deceased had children with the surviving spouse.

Depending on these three factors, your surviving spouse could be entitled to anywhere from one-sixth to one-half of your assets at your death. Generally, if no children were born during your second marriage, your surviving spouse of a second marriage would be entitled to one-sixth of your assets (if they didn’t like what they otherwise received in your will).

New Elective Share Statute

The new law eliminates these factors and now determines 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. Such that, the longer you were married the larger the elective share, determined as follows:

  1. If married less than five years, then the share is 15%
    2. If married five to ten years, then the share is 25%
    3. If married ten to 15 years, then the share is 33%
    4. If married for more than 15 years, then the share is 50%

Can you prevent this result?

Yes! If you have children and are marrying for the second time you need a prenuptial agreement in order for you and your new spouse to properly waive your respective rights to claim the statutory shares. This type of waiver cannot be handled in a will, it must be a separate, properly drafted and executed prenuptial agreement, or, if you are already married, a post-nuptial agreement. You can agree on partial or complete waivers of the elective share

Shipman & Wright can assist you to promptly and economically address this issue. Contact our office today. Problem Solved.