Can You Disinherit Your Spouse in North Carolina?

Under N.C.G.S. § 30-3.1, if the spouse of a deceased is omitted from the will, they may still claim an elective share, which is a statutory right to get a portion of their deceased spouse’s estate. With the elective share overwriting certain terms of the will, should the surviving spouse choose to exercise it, this begs the question, “Can you disinherit your spouse in North Carolina?” The short answer is that the spouse must waive their rights to inheritance.

What Is the Elective Share?

The elective share is a legal provision that makes sure a spouse is given a specified minimum part of the estate, even if they have been deliberately left out of the will or have been assigned less than what the law calls for. The elective share is a percentage that is based on the duration of the marriage.

Marriages lasting less than five years involve a 15% cut of total net assets. For marriages that last five to 10 years, the spouse is entitled to 25%. Those lasting 10 to 15 years give an automatic 1/3 of net assets to the surviving spouse, and those that last over 15 years call for a 50% splitting of assets.

The proportion that the surviving spouse gets is calculated by taking a percentage of the total net assets. This includes probate and some non-probate transfers, like any trusts the deceased may have tried to use to hide assets or accounts that are held jointly.

Can a Spouse Be Fully Disinherited?

A spouse can only be fully disinherited in North Carolina in very specific and rare cases. For example, it is possible for a spouse to waive their right to the elective share in a pre- or postnuptial agreement, and this must be in compliance with legal requirements of full disclosure, fairness, and voluntary participation.

Outside of prenuptial or postnuptial agreements, a surviving spouse is entitled to claim the elective share in North Carolina, despite what the contents of the deceased’s will call for.

Why This Law Matters: The Reality of Family Structures in North Carolina

According to the 2023 American Community Survey, 47.4% of households in North Carolina are made up of married-couple families, with 28.8% being female-headed family households with no spouse, and 17.3% being male-headed households with no spouse. 32.6% of adults living in North Carolina have never been married.

These figures reflect how relationship norms are shifting in this state, with many North Carolinians cohabiting without marrying, living in family structures that are non-traditional, or choosing to remarry later on in life. For those who are married, this underscores how important it is to understand how default legal provisions for spouses could have an impact on estate planning, particularly in blended families or subsequent marriages.

What Happens If There’s No Will?

If someone dies without having a valid will, North Carolina’s intestacy laws are applied. The share taken on by their surviving spouse is dependent on whether the individual who passed away had parents who were living or children. If there are no children or parents, the spouse will be given everything. If there are parents and or children, the estate is then shared between the spouse, the children, and the parents.

Even without taking the elective share law into account, spouses have a guaranteed significant part of the estate that they should inherit following North Carolina’s intestacy rules.

Real-World Example

Let us say that Tom, a retired resident living in the Raleigh area, writes a will in 2025 indicating that he wants all of his assets to go to his children from a previous marriage. He believes that his current wife, Eleanor, has sufficient savings to be financially stable for the rest of her life and wants his legacy to go towards his children, as one of them has a severe disability.

After Tom passes away, Eleanor discovers that she has been left out of the will and can claim her elective share of the estate under North Carolina law. If they have been married for more than 15 years, she can even claim up to 50%. Even if Tom transferred these assets directly to his children through POD accounts or a trust, Eleanor may still have a right to her portion of these assets under net asset calculations.

Unfortunately, these situations are not uncommon in North Carolina blended families and can lead to major conflict against the wishes of the deceased without adequate estate planning.

FAQs:

Q: Can I Use a Will to Leave Everything to My Children and Nothing to My Spouse?

A: No, in North Carolina, you cannot use a will to leave everything to your children and nothing to your spouse. This is only possible unless your spouse signs a valid waiver or prenuptial or postnuptial agreement. Otherwise, your spouse is able to claim their elective share under the law, which could be up to half of your total net assets upon your passing.

Q: What If My Spouse and I Are Separated but Not Legally Divorced?

A: If you and your spouse are separated but not legally divorced, your spouse still has a legal right to their elective share should you pass away. Even if you were living apart, you need to have either a waiver of spousal rights or a court order of absolute divorce to abolish the right of your spouse to claim their elective share upon your passing. A skilled estate planning lawyer can help you understand your options.

Q: Can a Spouse Be Disinherited If We Signed a Prenup?

A: Yes, a spouse can be disinherited if you signed a valid prenuptial agreement. It’s important to note that your prenuptial agreement must accurately and explicitly waive the spouse’s right to the elective share, meeting all legal requirements in order to be enforceable. An experienced estate planning lawyer can help ensure your prenuptial agreement is legally enforceable.

Q: Does the Elective Share Include Retirement Accounts or Trusts?

A: The elective share may include retirement accounts or trusts. The total net assets calculation is used in North Carolina, which may include some non-probate assets such as joint accounts, revocable trusts, or life insurance policies that have certain beneficiaries. A dedicated estate planning lawyer can help you understand which elements of an estate may apply to elective shares.

Don’t Leave Your Legacy Up to Chance – Contact a Skilled Estate Planning Attorney Today

Unless the spouse has voluntarily waived their rights in a valid legal agreement to the elective share, it is not possible for you to fully disinherit your spouse in North Carolina. An experienced North Carolina State planning attorney from Lancaster and St. Louis can assist you with balancing your spouse’s legal rights with the protection of your legacy. Contact us today to learn more.