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).
Solutions?
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.
Basic Estate Advice
If a family member or friend has passed away and you are going to be acting as the Executor or Administrator of the estate (the “personal representative” in the words of the Legislature), here are some preliminary tips for getting off to the right start:
Grieve First
When someone dies, there is no real deadline for filing his or her Will or otherwise opening the estate. The Clerk of Court would prefer that you do so within 90 days, but in reality, the Clerk is not going to turn you away if it takes you a little longer than that to get started. Be with your family, attend to the funeral arrangements, and don’t worry about opening the estate until you are ready to proceed. Serving as a personal representative can be a difficult job, and you should have a clear head before beginning the process.
Don’t Give Away Any Assets
It can be tempting to go ahead and start distributing money or other items to a deceased person’s heirs, especially if there are specific items listed in a Will or if the heirs are pressuring you for their share. The best practice is to wait until you are ready to settle the estate or at least until you have information concerning the deceased’s debts. If the person dies leaving behind medical bills, credit cards, taxes, or other debts that can’t otherwise be paid, you will be held personally responsible for reimbursing the estate for the value of any items or money that you gave away. You will usually know what debts are out there within three or four months after you’ve opened the estate file at the courthouse, so everybody just needs to be patient until then.
Keep Accurate Records
One of your most important duties as a personal representative is to complete and file estate accountings with Court. Do yourself a favor and hang on to every bank statement, cancelled check, receipt, invoice, or other financial document that crosses your path. I once put a lot of time into compiling final account documents in a complicated estate, only to discover that in between drafting the documents and receiving the final bank statement from the estate bank account, the bank paid interest into that account in the amount of one cent ($0.01). Because of that one-penny difference, I had to go back and redo the paperwork before the Court would accept it. Take the job of personal representative seriously from the start and you’ll save yourself a lot of headaches in the end.
The Garner Lawyer 