You Can’t Disinherit Your Spouse in North Carolina
He can lie to you, cheat on you, even beat you and your kids, but you still can’t cut your husband out of your estate in North Carolina. Even if you write a Will specifically stating that your spouse is to receive nothing if you die, your husband or wife is still entitled to claim a significant percentage of your assets if you pass away while you are still legally married.
Under North Carolina law, a surviving spouse who is left out of a Will can file one form with the court and the law awards that spouse what’s called his or her “elective share” of your estate. The amount the spouse receives can vary depending on whether the deceased spouse is also survived by children.
The Elizabeth Edwards Example
Elizabeth Edwards, the wife of former U.S. Senator John Edwards, died from cancer on December 7, 2010. Following the disclosure of Senator Edwards’ affair, John and Elizabeth had separated eleven months earlier. Six days before her death, Elizabeth Edwards reportedly changed her Will to cut John Edwards out completely and give all of her assets to her children. However, because the Edwards had not been separated a full year, they could not divorce yet, and unless both had signed a separation agreement preventing him from doing so, John Edwards could have claimed a share of Elizabeth’s estate even though she clearly didn’t want him to receive anything (I have no idea if he actually claimed his surviving spouse’s share or not).
While there wasn’t anything Elizabeth Edwards could do unilaterally to solve the problem described above, there are a few things you can do to try and avoid a similar dilemma:
1. Sign a Separation Agreement – A common provision in most separation agreements takes away the ability of either party to claim their surviving spouse’s share of the other’s estate. The Edwards may have had such an agreement (we don’t really know), but because both spouses must agree to sign a separation agreement, this isn’t always possible.
2. Get Divorced Already! – I can’t even count the number of times I’ve had clients tell me that they have been separated from their spouse for 5, 10, even 20 years or more, but have never actually gotten divorced. A divorce automatically eliminates that spouse’s right to claim any part of your estate, so if you’ve been separated for more than a year (Elizabeth Edwards was still one month short when she died), you can avoid this issue by just filing the paperwork and getting divorced.
3. Lobby the State House – To most people, the full year separation statute in North Carolina probably seems a bit old-fashioned. Most states allow couples to get divorced more quickly, and the North Carolina Legislature could certainly shorten the required separation period at any time. Unfortunately, and somewhat unbelievably, in the current political climate in this state, it appears that a longer separation requirement may be more likely than a shorter one, so for the time being you would be better advised to seek out one of the other suggestions listed above.
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