North Carolina § 30-3 - 1. Right of elective share.

§ 30-3. 1. Right of elective share.

Elective Share. - The surviving spouse of a decedent who dies domiciled in this State has a right to claim an "elective share", which means an amount equal to (i) the applicable share of the Total Net Assets, as defined in G.S. 30-3.2(4), less (ii) the value of Net Property Passing to Surviving Spouse, as defined in G.S. 30-3.2(2c). The applicable share of the Total Net Assets is as follows: If the surviving spouse was married to the decedent for less than five years, fifteen percent (15%) of the Total Net Assets. If the surviving spouse was married to the decedent for at least five years but less than 10 years, twenty-five percent (25%) of the Total Net Assets. If the surviving spouse was married to the decedent for at least 10 years but less than 15 years, thirty-three percent (33%) of the Total Net Assets. If the surviving spouse was married to the decedent for 15 years or more, fifty percent (50%) of the Total Net Assets. Repealed by Session Laws 2013-91, s. 1(d), effective October 1, 2013, and applicable to estates of decedents dying on or after October 1, 2013. Repealed by Session Laws 2009-368, s. 1, effective August 27, 2009, and applicable to decedents dying on or after October 1, 2009. History (2000-178, s. 2; 2003-296, s. 1; 2009-368, s. 1; 2013-91, s. 1(d).) Cross References. - As to intestate succession, see G.S. 29-1 et seq. As to abolition of dower and curtesy, see G.S. 29-4. For provision that a decedent's half of community property is not subject to the surviving spouse's right to petition for an elective share, see G.S. 31C-3. Editor's Note. - Session Laws 2000-178, ss. 1 and 2, effective January 1, 2001, and applicable to estates of decedents dying on or after that date, repeal G.S. 30-1 to 30-3, relating to the surviving spouse's right to dissent from his or her deceased spouse's will, and enact this article, relating to the right to claim an elective share. Case notes from repealed G.S. 30-1 to 30-3 have been placed under G.S. 30-3.1 to 30-3.6, as appropriate. Session Laws 2013-91, s. 5, made the amendments to this section by Session Laws 2013-91, s. 1(d), applicable to estates of decedents dying on or after October 1, 2013. Effect of Amendments. - Session Laws 2009-368, s. 1, effective July 27, 2009, and applicable to decedents dying on or after October 1, 2009, in the introductory language of subsection (a), in the first sentence, inserted "Net", and substituted "G.S. 30-3.2(2c)" for "G.S. 30-3.3(a)"; in subsection (b), substituted "who are not lineal descendants of the decedent's marriage to the surviving spouse" for "by a prior marriage"; and deleted subsection (c), related to death taxes. Session Laws 2013-91, s. 1(d), effective October 1, 2013, rewrote subdivisions (a)(1) through (a)(3); added subdivision (a)(4); and deleted former subsection (b), which read: "Reduction of Applicable Share. - In those cases in which the surviving spouse is a second or successive spouse, and the decedent has one or more lineal descendants surviving who are not lineal descendants of the decedent's marriage to the surviving spouse but there are no lineal descendants surviving by the surviving spouse, the applicable share as determined in subsection (a) of this section shall be reduced by one-half." For applicability, see editor's note. Legal Periodicals. - For discussion of prior law, see 11 N.C.L. Rev. 274 (1933); 23 N.C.L. Rev. 380 (1945). For note on dissent by incompetent widow through her guardian, see 35 N.C.L. Rev. 520 (1957). For note on constitutionality of husband's right to dissent from wife's will, under former law, see 41 N.C.L. Rev. 311 (1963). For case law survey on devolution of property, see 41 N.C.L. Rev. 432 (1963). For note, "Contracts to Devise - Effect of Excluded Forced Heirs," see 47 N.C.L. Rev. 905 (1969). For note, "Does North Carolina Law Adequately Protect Surviving Spouses?," see 48 N.C.L. Rev. 361 (1970). For article, "Transferring North Carolina Real Estate Part I: How the Present System Functions," see 49 N.C.L. Rev. 413 (1971). For note on a surviving spouse's right to dissent, under prior law, see 16 Wake Forest L. Rev. 251 (1980). For note on the right of surviving spouse to dissent, under prior law, from deceased spouse's will when survivor receives less than an intestate share of deceased's net estate, see 12 N.C. Cent. L.J. 511 (1981). For comment, "The North Carolina Dissent Statutes: The Seeds of Inequities Germinate . . .," see 8 Campbell L. Rev. 449 (1986). For comment, "The Uniform Probate Code's 'Augmented Estate' Concept: A Remedy for the North Carolina Dissent Statute," see 12 Campbell L. Rev. 425 (1990). For article, "A Spouse's Right to Control Assets During Marriage: Is North Carolina Living in the Middle Ages?," see 18 Campbell L. Rev. 203 (1996). For article, "North Carolina's New Elective Share Statute: Much Ado About Nothing?," see 36 Wake Forest L. Rev. 795 (2001). For article, "The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina," see 87 N.C.L. Rev. 1869 (2009).