The Elective Share – What is It? by Catherine Wilson

This blog post will be the first in a three-part series on North Carolina’s elective share law. The first post will review what an elective share is and how it works, and the second and third posts will focus on recent updates to the elective share statute that became effective on January 1, 2026 pursuant to Session Law 2025-33, Part X. Those subsequent blog posts will focus on procedural changes and updates to valuation rules. But first we must consider the essential question—what is the elective share?

 What is the elective share?

In North Carolina, a person cannot completely disinherit their spouse. If a person dies with a will that does not leave anything to their spouse, the spouse has a right to a statutorily defined share of the deceased spouse’s assets. This right is called the elective share. The elective share is essentially a math formula, of which the terms are defined by statute. The amount of the elective share that a surviving spouse is entitled to is determined in an order entered by the clerk of superior court, the judicial official with the authority to decide elective share matters in North Carolina. G.S. 28A-2-4(a)(3). After a proceeding is initiated before the clerk and a hearing is held, the clerk determines (i) whether a surviving spouse is entitled to an elective share and (ii) if so, the amount of the elective share. G.S. 30-3.4(f). The formula the clerk applies to determine the amount of the elective share is based on the spouse’s “applicable share” of the deceased spouse’s “total net assets” minus the value of the “net property passing to the surviving spouse” (NPPSS). Or, to put it another way:

(Total Net Assets x Applicable Share) – NPPSS

= Elective Share Amount

Total Net Assets are the total assets owned by the deceased spouse (referred to in this post as the “decedent”) or in which the decedent had an interest at the time of death, reduced by claims and any year’s allowance to persons other than the surviving spouse. G.S. 30-3.2(4). These total assets include those that are controlled by the decedent’s will and other assets that pass by contract, such as life insurance, retirement accounts, jointly owned property, and interests in a trust. For a complete list of the assets that are included in Total Net Assets, see G.S. 30-3.2(3f). The Applicable Share is a percentage based on the length of the marriage, with the percentage increasing over time. G.S. 30-3.1(a). For example:

1. If the surviving spouse was married to the decedent for less than five years, the Applicable Share is fifteen percent (15%).
2. If the surviving spouse was married to the decedent for at least five years but less than 10 years, the Applicable Share is twenty‑five percent (25%).
3. If the surviving spouse was married to the decedent for at least 10 years but less than 15 years, the Applicable Share is thirty‑three percent (33%).
4. If the surviving spouse was married to the decedent for 15 years or more, the Applicable Share is fifty percent (50%).

The Net Property Passing to Surviving Spouse is any property that passes to the surviving spouse upon the decedent’s death, reduced by applicable taxes and claims. G.S. 30-3.2(2c). This includes property that passes to the surviving spouse under the deceased spouse’s will, via intestacy, by beneficiary designation, in a trust, by operation of law or otherwise by reason of the decedent’s death. G.S. 30-3.2(3c)a. It also includes any year’s allowance or life insurance proceeds received by the surviving spouse, any property renounced by the surviving spouse, any gift the surviving spouse received during the decedent’s lifetime that was acknowledged by the surviving spouse in writing, and any property awarded to the surviving spouse in an equitable distribution claim after the death of the decedent. G.S. 30-3.2(3c)b through f.

Putting It All Together

To see the elective share in action, consider the following example: Darla and Bobby were married for 20 years. Bobby has two adult children from a prior marriage. At the time of his death, Bobby owned the following assets:

• A house that Bobby lived in with Darla, owned with her as tenants by the entirety, worth $400,000.
• A bank account in Bobby’s sole name worth $100,000, and
• A life insurance policy of $500,000, of which his adult children were named the beneficiaries.

Bobby never updated his will after he and Darla got married, so his will leaves everything to his children in equal shares. For simplicity, let’s assume there are no taxes, claims, or expenses of Bobby’s estate. If Darla claims the elective share, the formula would apply as follows:

• Darla’s Applicable Share would be 50%, because she and Bobby were married for more than 15 years. G.S. 30-3.1(a)(4).
• The Total Net Assets would be $800,000 and consist of:
  • One-half of the value of Bobby and Darla’s home ($200,000). G.S. 30-3.2(3f)c.1.
  • The total value of the assets in his bank account ($100,000). G.S. 30-3.2(3f)a.
  • The total value of the life insurance policy ($500,000). G.S. 30-3.2 (3f)d.1.
• The NPPSS would be $200,000, which is Bobby’s one-half of the home that passes automatically to Darla at death because they owned it as tenants by the entirety. G.S. 30-3.2(3c)a.

If you multiply the Total Nets Assets ($800,000) by Darla’s Applicable Share (50%), you get $400,000. If you then subtract the NPPSS ($200,000), Darla’s elective share amount would be $200,000.

($800,000 Total Net Assets x 50% Applicable Share) – $200,000 NPPSS

= $200,000 Elective Share Amount

This means that in addition to owning Bobby’s 50% of the home (worth $200,000), Darla would be entitled under the elective share to receive an additional $200,000 of Bobby’s assets, for a grand total of $400,000. When it is time to pay Darla her elective share, the personal representative of Bobby’s estate will pay Darla from the responsible persons in the proportions and in the order required by G.S. 30-3.5.

Does the elective share apply if the deceased spouse leaves the surviving spouse something in the will?

The fact that a decedent’s will leaves something to a surviving spouse (known as a “devise”) does not bar the surviving spouse from seeking an elective share.  A devise under a will is considered NPPSS that is subtracted from a spouse’s Applicable Share of Total Net Assets. G.S. 30-3.2(3c)a. If the spouse is entitled to an amount of elective share, the surviving spouse will receive this amount in addition to the devise they received under the will. The elective share does not replace or override what the spouse receives in the will. In the example of Bobby and Darla, imagine all of the same facts except that Bobby’s will leaves Darla a devise of $100,000. Darla could still choose to claim the elective share and, if she does, the formula would look like this:

($800,000 Total Net Assets x 50% Applicable Share) – $300,000 NPPSS

= $100,000 Elective Share Amount

The only number that is different in this formula is Darla’s NPPSS, which includes Bobby’s 50% of the home ($200,000), plus the $100,000 devise that Darla’s receives under Bobby’s will—for a total NPPSS of $300,000. When you subtract this from Darla’s Applicable Share of Bobby’s Total Net Assets ($400,000), Darla is entitled to receive $100,000 as her elective share.

One point of caution: Although a devise to a surviving spouse under a decedent’s will does not bar the spouse from claiming an elective share, doing so may not work out to the spouse’s advantage. Depending on the amount of the devise and other amounts used to calculate the elective share, the spouse may receive no additional benefit from claiming an elective share. For example, if Darla received a devise of $200,000 or more under Bobby’s will, she would not be entitled to anything under the elective share, because her NPPSS would equal or exceed the value of the Total Net Assets times her Applicable Share. It likely would not benefit Darla to file for an elective share under those circumstances as it would not yield a greater distribution to her from Bobby’s estate.

Does the elective share apply if the decedent dies without a will?

If the decedent dies intestate (without a will), a surviving spouse can still claim the elective share, and doing so may be financially beneficial. If a person dies without a will, their surviving spouse is automatically provided for under North Carolina’s Intestate Succession Act (G.S. 29-1, et seq), and the spouse would be entitled to receive a share of the decedent’s personal and real property.  The amount of the spouse’s intestate share depends on whether the decedent was also survived by children or parents. G.S. 29-14. Using the example of Darla and Bobby, and assuming Bobby died without a will, under G.S. 29-14 of the Intestate Succession Act because Bobby also died with two surviving children, Darla would be entitled to the first $60,000 of Bobby’s personal property, and one-third of the remaining personal and real property. Because Bobby’s 50% of the house passes automatically to Darla by operation of law, it passes outside of Bobby’s estate and is not subject to the Intestate Succession Act. Bobby’s life insurance policy passes automatically to his children by beneficiary designation and would not be an asset of Bobby’s estate. Thus, under the Intestate Succession Act, Darla would only be entitled to the following:

• The first $60,000 of Bobby’s bank account.
• One-third of the remainder of Bobby’s bank account, or $13,333.

Darla’s total inheritance would be $73,333 of Bobby’s bank account via the Intestate Succession Act, plus Bobby’s one-half of the house passing by operation of law ($200,000), for a total of $273,333. Contrast this with the amount Darla would be entitled to receive if she chose to claim an elective share. Under the elective share formula, the Total Net Assets would be $800,000 and Darla’s Applicable Share is 50%. The amount she is entitled to receive under the Intestate Succession Act is added to her share of NPPSS. Thus, Darla’s NPPSS would be a total of $273,333, consisting of the $200,000 of Bobby’s one-half of the house plus the $73,333 of Bobby’s bank account she would receive under G.S. 29-14. Applying the elective share formula, Darla would be entitled to the following:

($800,000 Total Net Assets x 50% Applicable Share) – $273,333 NPPSS

= $126,667 Elective Share Amount

This means that Darla would be entitled to Bobby’s half of the home ($200,000) which she received by operation of law as it passed automatically to her at death as tenants by the entirety. Plus, she would receive $73,333 of Bobby’s bank account pursuant to the Intestate Succession Act.  Plus, pursuant to her claim for elective share, Darla would be entitled to receive an additional $126,667 representing her elective share amount, for a grand total of $400,000.

How long does the surviving spouse have to file for the elective share?

A distinct feature of the elective share is the short amount of time a surviving spouse has to claim it. The surviving spouse must claim the elective share by filing a petition with the clerk of superior court within six months of the issuance of letters testamentary (if the deceased spouse had a will) or six months of the issuance of letters of administration (if the deceased spouse died intestate). G.S. 30-3.4(b). If the surviving spouse does not act quickly to file a petition for elective share, they may lose the right to claim it. Note that the statute does not require that an elective share proceeding be resolved within six months; the petition must simply be filed within that time. Likewise, if a decedent dies and no letters are issued, the six months would not begin to run because the requirement—the issuance of letters testamentary or letters of administration—had not yet occurred.   That’s all on the elective share for now. The next installment will review the process for claiming the elective share, with a focus on the procedural updates that went into effect on January 1, 2026.