Disinheriting a spouse?
Under North Carolina law, you cannot completely disinherit your spouse who are you are currently married to and living with. The surviving spouse is entitled to an “elective share” of the decedent’s total net assets. The right of elective share by the surviving spouse can be found under N.C.G.S. § 30-3.1, which also provides what percentage is the surviving spouse’s share of the total net assets of the decedent:
“(1) If the surviving spouse was married to the decedent for less than five years, fifteen percent (15%) of the Total Net Assets.
(2) If the surviving spouse was married to the decedent for at least five years but less than 10 years, twenty-five percent (25%) of the Total Net Assets.
(3) If the surviving spouse was married to the decedent for at least 10 years but less than 15 years, thirty-three percent (33%) of the Total Net Assets.
(4) If the surviving spouse was married to the decedent for 15 years or more, fifty percent (50%) of the Total Net Assets.”
If you and your spouse are separated, however, you may waive the right to receive anything from the other's estate if you chose to execute a separation agreement stating as much.
In North Carolina, you can disinherit your children. If you chose to disinherit a child, you must do so by explicitly stating that the child is disinherited in your will. It may also help to state the reason as to why the child is getting nothing, or a reduced amount. If you simply do not mention a child in your will, it may be interpreted that you did not mean to intentionally exclude the child.
If you would like to speak with an estate planning attorney regarding drafting a will or estate plan, contact Adkins Law. We have locations in Huntersville and Ballantyne for your convenience.