Do you have to leave property to your spouse in your will? There are many reasons why you may not want to leave your spouse part of your estate. Maybe your wife is independently wealthy, and you have other plans for your legacy. Maybe your relationship with your husband has deteriorated but you don’t want to go through the difficult and drawn out legal battle of divorce. Whatever the reason may be, you can absolutely cut a spouse out of a will. This will not invalidate the will. However, simply leaving your spouse out of your will does not mean that they are not entitled to a piece of your estate.
North Carolina has enacted legislation to provide options for spouses who may not be receiving their fair share. The rationale behind these laws is that spouses are generally co-dependent. They have co-mingled funds and assets. Thus, when one spouse passes, the other is left in a difficult position because they cannot access the resources they had available when their spouse was alive.
In North Carolina, a surviving spouse is entitled to a “years allowance” which is $60,000 of the estate. The spouse can also receive an additional $5,000 per child if:
- Children are less than age 22 and full-time students
- Children are less than age 21 and have been declared mentally incompetent
- Children are less than 21 and are completely disabled
- The child is a person person under the age of 18, lived with the decedent, and was under the decedent’s guardianship.
Obviously, if there is not $60,000 worth of assets in the estate, the spouse will be entitled to whatever amount exists. However, if additional property is found, it will be distributed to the spouse to make up her deficit.
North Carolina also has an elective share statute to protect a surviving spouse. Similar to the years allowance, the elective share allows a spouse to receive a portion of the estate. However, the portion they receive is not a sum certain. Instead they receive a percentage based on the length of the marriage. It breaks down as follows:
- Married less than 5 years = 15% of the Total Net Assets.
- Married at least five years but less than 10 years, twenty-five percent 25% of the Total Net Assets.
- Married for at least 10 years but less than 15 years, 33%of the Total Net Assets.
- Married for 15 years or more, 50% of the Total Net Assets.
The “Total Net Assets” include not only property that passes through the will, but all assets of the estate. This includes property of which a beneficiary can be assigned (e.g. life insurance, retirement accounts, bank accounts, etc). Thus, you cannot disinherit a spouse simply by passing property outside the will and avoiding probate.
Prenuptial and Postnuptial Agreements
So how do you get around these protections? In short, the only way to disinherit your spouse is by mutual agreement. A prenuptial or postnuptial agreement is a contract between the spouses that requires each spouse to agree without duress or coercion. If each spouse is willing to agree, the right of the year’s allowance and elective share can be waived.
Premarital planning is an important part of your estate plan. You should talk to an estate planning attorney to understand your options.
Brenton S. Begley
Elder Law Attorney
McIntyre Elder Law
“We help seniors maintain their lifestyle and preserve their legacies.”
PO Box 165
Shelby, NC 28151-0165