State laws can override your wishes if you die without leaving a valid will or try to disinherit someone you can’t legally disinherit. North Carolina wants to make sure that you provide for your spouse and minor children. Further, if you don’t make your last wishes known in a will, the state may give your property to some other relatives as well.
When someone dies without writing a will, the law presumes that if he had gotten around to it, he would have left his property to his closest family members. Most states have statutory lists spelling out exactly who these relatives are and how much of the estate they should receive. They’re named in a certain order called intestate succession. A spouse and children head up North Carolina’s list. If you don’t have kids and if your parents aren’t living, your spouse gets everything. If you have no spouse, your children inherit everything.
Your Spouse and Children
If you’re married, have children and your parents are still living, things get much more complicated. Who gets what and how much depends on how many children you have. If you leave only one child, your spouse gets half of any real estate you own plus the first $60,000 of your other property. Your child gets the other half of your real estate and half your other property over $60,000, with your spouse taking the other half of that. If you have more than one child, your spouse receives only one-third of your real estate and the first $60,000 of your other property, while your children equally share in the remaining two-thirds of your real estate and two-thirds of the balance of your other property over $60,000. Your spouse also receives one-third of the value of your additional property that doesn’t go to your kids.
More Distant Relatives
Your parents can inherit from you in North Carolina only if you have no children. If you’re married but have no kids, your spouse gets half of your real estate and your parents get the other half. Your spouse gets the first $100,000 of the rest of your property plus half the remaining balance, with your parents getting the other half. Your parents get everything if you’re not married and leave no children. Your siblings inherit only if your parents aren’t living and you leave no spouse or children, while your grandchildren only inherit if their parent, who is your child, is deceased. If you die without a will and don’t have any living family members, your property will be turned over to the state.
Disinheriting Family Members
North Carolina has an elective share law that applies if you leave a will but decide you don’t want to bequeath anything to your spouse. You’re not permitted to do this. She can “elect against” your will, effectively overriding its terms, providing she hasn’t waived this right in a prenuptial agreement. Exactly how much your spouse receives depends on how long you were married. If you were together for less than five years, she gets 15 percent of your net estate. If you were married for five to nine years, she gets 25 percent, and if you were married for 10 years or more, she receives 33 percent. “Net estate” refers to what’s left after your debts, taxes and costs of probate are paid and after subtracting anything you might have left her in your will that amounts to less than the percentage to which she’s entitled by law. For example, if you left her a token $100 in your will and you were married for three years, your wife would receive 15 percent of your estate after payment of your debts, taxes and probate expenses minus the $100 you bequeathed her.
Effect of Divorce
Divorce changes everything. If you divorce your spouse, she’s not entitled to an intestate share of your estate -- and she loses her right to an elective share as well. If you leave a will that gives her a bequest, she’s not entitled to it unless you explicitly state otherwise in the document, such as by saying that you want her to inherit regardless of the fact that your marriage didn’t work out. Further, if you named her as executor of your estate, she can’t serve. Of course, if you remarry, all these rights under North Carolina's inheritance laws are reinstated.
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