The short answer: Not without your spouse's permission.
Your spouse can sign a prenuptial (before the wedding ceremony) agreement or a postnuptial (after the wedding ceremony) agreement and waive his or her elective share rights.
An elective share right is a statutory right of a spouse to demand a share of the deceased spouse's estate regardless of what the deceased spouse's will or trust says. Starting on your wedding day, your spouse has a 15% elective share right. It increases to 25% after five years of marriage, 33% after 10 years of marriage and increases to 50% after 15 years of marriage.
How does this play out?
If you attempt to disinherit your spouse by creating a will or trust that leaves everything to your children, after you die, your spouse can demand an elective share based on the number of years married and this will trump the terms of your will or trust. This is also likely to cause family conflict.
Another scenario we often see this issue arise is when one spouse is disabled and receiving government benefits. The well-spouse may attempt to disinherit thinking that the spouse does not need anything more than the government benefits. In these situations, we help find solutions that provide for the disabled spouse in a manner that does not jeopardize the government benefits and ensure the elective share is also met.
An elective share claim must be made within 6 months of the issuance of the Letters Testamentary. The probate court will look at all of the decedent's property to determine whether the elective share was in fact received. This includes both probate and non-probate property. If the spouse received real estate or other assets outside of probate through right of survivorship, then those assets are also counted toward the elective share amount.
Contact Estate Planning NC to discuss your estate planning needs.
Our Process:
You will receive an email with a questionnaire link. Complete and submit prior to your consultation and the $350 fee will be waived.
Meet with an estate planning attorney and learn all the different strategies that can help you achieve the outcomes you desire.
Choose your plan based on your budget.
Pay half of the plan fee and schedule your legacy interview and signing ceremony.
At signing, pay the balance owed and get your plan along with the peace of mind knowing you protected everything you own and everyone you love! Schedule Now!
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