Many people assume that by creating a Will, a Trust, or updating beneficiary forms, they can prevent a spouse from inheriting any part of their estate. Others think that simply being separated or even filing for divorce protects their assets from a current spouse. Unfortunately, that is not the case … especially in states like North Carolina, where the law provides strong protections for surviving spouses. This is true even if you and your spouse have been living apart for years!
Without careful planning, a spouse you intend to divorce
could still claim a significant portion of your estate.
What is the Elective Share?
The elective share is a statutory right that allows a surviving spouse to claim a portion of the deceased spouse’s estate, regardless of what the Will, Trust, or other beneficiary designations state. See N.C. Gen. Stat. § 30-3.1 et seq. The law was passed to prevent spouses from being completely disinherited, reflecting a long-standing legislative and judicial policy that marriage creates financial obligations that survive separation or even estrangement.
The elective share is calculated as a percentage of the decedent’s Total Net Assets, which is effectively North Carolina’s version of the augmented estate. This includes not just probate assets, but also non-probate transfers such as retirement accounts (IRAs, 401(k)s, pensions), life insurance, annuities, payable-on-death accounts, jointly owned property, and revocable trusts/irrevocable trusts over which the decedent retained control.
Even if a spouse is excluded from a Will or Trust, or if you have updated all your beneficiary forms, the surviving spouse can still petition the court to receive their statutory minimum. The applicable percentage depends on the length of the marriage, ranging from 15 percent for marriages under five years to 50 percent for marriages of fifteen years or more.
Best Practices to Fully Protect Your Estate from a Surviving Spouse
- Sign a post-marital agreement with a specific spousal waiver before witnesses and a notary; or
- Obtain a final judgment of divorce.
Why the Law Protects Spouses — Even When Separated
The law recognizes that a surviving spouse may have contributed in ways that are not always visible on paper. When couples marry, they often make sacrifices together — one spouse may stay home to raise children, or both may contribute to building a home, saving for retirement, or supporting each other’s careers. Elective share laws exist to prevent a spouse from being completely disinherited, even if the decedent tried to cut them out of a Will, Trust, or retirement account.
Think of it like this: the elective share acts as a safety net. It doesn’t punish someone for leaving their estate to others, but it ensures fairness. It says, “You can plan how to distribute your assets, but you can’t leave your spouse completely without support if the marriage is still legally valid.”
In practice, this means that if you expect to inherit from your family or want to leave your estate to someone else, you cannot rely on separation or a pending divorce to guarantee that your spouse does not receive a share of your estate.
Length of Marriage Matters
The longer you are married, the more a surviving spouse can claim through the elective share. North Carolina uses a sliding scale based on the length of the marriage. Also, even if you are planning to divorce, the law measures the length of the marriage up to the date of death — not the date of separation.
Think You Can Disinherit Your Spouse?
It is common to think that removing a spouse as a beneficiary on an IRA, 401(k), or life insurance policy prevents the spouse from inheriting. While federal law treats IRAs differently than employer-sponsored plans — IRAs generally do not require spousal consent to change beneficiaries — North Carolina law still includes these assets in the elective share calculation.
Employer plans governed by ERISA, such as 401(k)s and 403(b)s, do require spousal consent to name someone other than a spouse as the beneficiary. But even if all your accounts are properly designated to others, the elective share statute counts these assets toward Total Net Assets. If your spouse did not receive their statutory portion, the court could require a make-up payment or reallocation from other estate assets to satisfy the elective share.
Divorce and Estate Documents: What Changes Automatically
It is important to understand what divorce actually does — and does not — accomplish.
- Wills: Divorce revokes provisions in a Last Will & Testament that favor a former spouse, treating them as if they predeceased the testator
- Trusts: Many revocable living trusts contain provisions disinheriting a spouse upon separation and/or divorce; however, best practice is to sign an amendment to remove a former spouse right to inherit
- Beneficiary Designations: Divorce does not automatically update beneficiary designations on IRAs, 401(k)s, life insurance, or other non-probate assets
Bottom Line
Even if you are separated and plan to divorce, you cannot “box out” a spouse from your estate while still married without taking deliberate legal steps. North Carolina law protects surviving spouses through the elective share statute, which can cover both probate and non-probate assets, including retirement accounts, life insurance, and jointly held property.
Simply being separated, updating a Will, amending a Trust, or changing beneficiary designations is not enough. Until a final divorce is entered, a spouse can petition for their statutory share, potentially affecting any inheritance or assets you hoped to pass to your children or family.
If protecting your estate and legacy is important to you, you need to act proactively: have candid discussions with your spouse, seek legal advice, and consider a specific spousal waiver or finalizing a divorce. Time is especially critical if you anticipate inheriting from elderly parents or expect significant assets to flow through your estate.
If you are in need of assistance, the attorneys at Collins Family & Elder Law Group can help.
