Welcome to part two of my series on North Carolina’s elective share. In part one of this series, we discussed what the elective share is and how it works to prevent a surviving spouse from being disinherited. In this part, we will delve into the process of filing a claim for elective share, highlighting the changes to G.S. 30-3.4 that went into effect on January 1, 2026 as a result of Session Law 2025-33, Part X.

As discussed in part one, if the surviving spouse does not act quickly to file a petition for elective share, the spouse may lose the right to claim it. The surviving spouse must make a claim for an elective share within six months after (i) the issuance of letters testamentary (if the deceased spouse had a will) or (ii) the issuance of letters of administration (if the deceased spouse died intestate). G.S. 30-3.4(b).

The elective share is claimed by filing a verified petition with the clerk of superior court of the county in which the primary administration of the decedent’s estate lies. G.S. 30-3.4(b). The person who files the petition is called the petitioner. The surviving spouse is often the petitioner, but there are two other people who can file on the surviving spouse’s behalf. First, a surviving spouse’s general guardian or guardian of the estate can file a claim for elective share on the spouse’s behalf. Second, the surviving spouse’s agent under a power of attorney can also file if (i) the surviving spouse’s power of attorney expressly authorizes the agent to do so; (ii) the power of attorney authorizes the agent to generally engage in estate, trusts, and other beneficial interests; or (iii) the agent obtains court approval to file the claim for elective share on behalf of the surviving spouse. G.S. 30-3.4(a).

Regardless of who files the petition for elective share, the surviving spouse must be living at the time the petition for elective share is filed; however, if the spouse dies after the claim is filed, the executor or administrator (otherwise known as personal representative or PR) of the spouse’s estate can continue to litigate the elective share proceeding. G.S. 30-3.4(a).

Prior to January 1, 2026, the petitioner was required to do two things to make a claim for elective share:

1. File a petition with the clerk of the county in which the primary administration of the decedent’s estate lies, and
2. Mail or deliver a copy of that petition to the PR of the decedent’s estate.

What wasn’t clear under prior law was whether both of these things had to happen before the six-month deadline, and if the surviving spouse had to prove that the PR of the decedent’s estate (the executor or administrator) received the petition prior to the six-month deadline. Also unclear was whether the petitioner had to serve the PR of the decedent’s estate with a summons after the filing of the petition.

These questions (and more) have been answered with the 2026 updates to G.S. 30-3.4.

Verified Petition Now Required

S.L. 2025-33 added a requirement that the petition for elective share must be verified by the petitioner. See G.S. 30-3.4(b), as modified by S.L. 2025-33. To be verified, the petition must contain an affidavit signed by the petitioner stating that the contents of the petition are true to the petitioner’s knowledge, except as to those matters stated on information and belief, and as to those matters, that the petitioner believes them to be true. G.S. 1A-1, Rule 11(b).

Service and Summons Questions Answered

How should the petitioner notify the PR that a petition for elective share has been filed? The 2026 changes give a clear answer. Specifically, the changes to G.S. 30-3.4 remove the ambiguous “mail or deliver” requirement described above. Instead, S.L. 2025-33 adds that “after filing the verified petition with the clerk of court, the petition shall be served upon the personal representative in accordance with G.S. 1A-1, Rule 4 of the Rules of Civil Procedure, without issuance of a summons.” G.S. 30-3.4(e1)(1) (emphasis added).

This change answers two important questions. First, it makes clear that a summons (a document notifying a party that a lawsuit has been filed against them) is not required to be issued and given to the PR. Second, it specifies the way that a PR must be given a copy of the petition, by directing that it must occur in accordance with the requirements of Rule 4 of the Rules of Civil Procedure.

Rule 4 service is a foundational concept in litigation, and it could easily be the subject of its own blog post. The nuances of Rule 4 are beyond the scope of this post. Suffice it to say that service under Rule 4 can be accomplished in four primary ways: by personal service, certified or registered mail return receipt requested (or a similar delivery service), voluntary acceptance by the party being served, or by publication. G.S. 1A-1, Rule 4. Thus, under the updated rules in G.S. 30-3.4(e1)(1), the petitioner must be able to prove that the PR received a copy of the petition by one of these methods.

Who Else Besides the PR Is Involved in an Elective Share Proceeding?

In addition to the PR, the surviving spouse must include those persons who may have received, held (or are holding), or controlled (or are controlling) any of the decedent’s assets that would be included as the decedent’s Total Net Assets in the elective share formula described in the part one of this series. These persons are referred to as responsible persons. G.S. 30-3.2(3d); -3.2(3a). This could include a beneficiary of the decedent’s will or a designated beneficiary of a specific asset, such as a life insurance policy or a retirement account.

The 2026 legislative changes provide that the petitioner must serve responsible persons in the same way as the PR. Specifically, the new G.S. 30-3.4(e1) provides that responsible persons should be served with a copy of the petition in accordance with Rule 4, without issuance of a summons.

When must responsible persons be added to the proceeding? Is there a time in the proceeding when it is too late to add them? The old version of the law never answered these questions. This lack of clarity was concerning, because the responsible persons may not all be known to the petitioner, or even to the PR, when an elective share petition is filed. This may be especially true when a decedent owns life insurance or a retirement account like a 401(k) or IRA that designates beneficiaries as the new owners at death. It may take weeks or even months before the identity of those beneficiaries are known to the surviving spouse or PR.

Prior to S.L. 2025-33, it was unclear how late in the elective share process a responsible person could be added. While the new G.S. 30-3.4(e1)(1) does not directly answer that question, it does not put a time limit on when a responsible person could be added to the elective share proceeding. A new G.S. 30-3.4(e1)(1) provides that service on responsible persons must be made “as those persons become known to the petitioner” and sets no time limit on when that could occur.

Must Rule 4 Service Be Completed within the Six-Month Time Limit?

No. The new subsection G.S. 30-3.4(e1)(1) is clear that failing to complete service of the petition on the PR or any other person within the six-month time limit will not render the claim for elective share as being untimely filed. Instead, the timeliness of the claim rests entirely on filing the petition with the clerk within the six-month limit.

A New Concept: The Optional, Organizational Hearing

If you’re keeping track, you will have noticed so far that the 2026 changes have answered unknowns in the older version of the statute—about how a petition must be filed, whether a summons must be issued, whether a PR or responsible person must be served within the six-month deadline, and when a responsible person can be added to an elective share proceeding. In addition to providing these answers, S.L. 2025-33 goes on to create something entirely new: an optional hearing that any party may request in the early stages of the elective share process.

This right is created in a new subsection (e1)(2) of G.S. 30-3.4. It gives the petitioner, the PR, or any other party the right to notice a hearing by serving all parties with a notice of hearing in accordance with Rule 5 of the Rules of Civil Procedure. The clerk is not included as one of the persons who may notice the parties for hearing. G.S. 30-3.4(e1)(2).

At the hearing, the clerk of superior court may enter an order to set deadlines for the gathering and sharing of information concerning total net assets and determine “any other relevant procedural matters.” G.S. 30-3.4(e1)(2). While the statute does not call this hearing an “organizational” hearing, it is clear from the language that the intent is to provide a mechanism for any party to call the other parties before the clerk to resolve a variety of organizational issues at the beginning of the elective share process.

Such a hearing could prove especially useful to PRs, for while the PR does not initiate the elective share claim, the PR is statutorily responsible for making sure that the deceased spouse’s Total Net Assets are discovered and properly valued. G.S. 30-3.4(e2)(1). Moreover, at the end of the elective share process, the PR has the responsibility to ensure that the spouse is paid the elective share awarded by the clerk, and to make sure that the elective share is paid from the proper sources and in the proper order. G.S. 30-3.4(f); -3.5. Therefore, the PR is highly motivated to make sure that the appropriate parties are joined in the proceeding, including as many responsible persons as can be located. The PR also has an interest in ensuring that none of the decedent’s assets are transferred or distributed prematurely (in case they are needed to pay the elective share), and the PR may also need additional time to gather and share information concerning the decedent’s total net assets.

These concerns could all be addressed in one organizational hearing under G.S. 30-3.4(e1)(2). For example, after being served with an elective share petition, the PR could notice a hearing under G.S. 30-3.4(e1)(2) asking the clerk to

• Extend the deadline for gathering and sharing asset information beyond the two months allowed by G.S. 30-3.4(e2)(1);
• Order that responsible persons known to the PR be joined as parties to the proceeding;
• Order the petitioner to add later-discovered responsible persons within a reasonable time after being notified of their existence by the PR or any other person; and/or
• Enter a standstill order preventing any responsible party from transferring or otherwise distributing assets without further order of the clerk.

After such a hearing, S.L. 2025-33 provides instructions as to what happens next. G.S. 30-3.4(e1)(3). Within 30 days of the order from the hearing, any party who was present at the hearing may file a responsive pleading to the elective share petition; however, the failure to do so will not be deemed an admission of any averment or claim in the petition. This new subsection goes on to provide that the clerk can grant an extension of time to file this responsive pleading in accordance with Rule 6 of the Rules of Civil Procedure. G.S. 30-3.4(e1)(3).

The remaining changes mirror in large part the process found in a caveat (will contest) proceeding. The “organizational” hearing in G.S. 30-3.4(e1)(2) is similar to the alignment hearing at the beginning of a caveat, although this hearing in an elective share proceeding is optional whereas the alignment hearing in a caveat is mandatory. Also, like a caveat, there is no requirement to file an answer to an elective share petition, and there is no risk of default if a responsible person or other party does not.

What Other Procedural Rules Apply to an Elective Share Proceeding?

Prior to 2026, the statute was clear that an elective share proceeding was an estate proceeding, subject to all the rules and requirements of Chapter 28A of the General Statutes. However, the updates in S.L. 2025-33 deviate from the estate proceeding requirements in Chapter 28A, particularly with the clarification that a summons is not required, along with the rules for when and how a responsive pleading has to be filed in G.S. 30-3.4(e1)(3). To resolve any confusion, G.S. 30-3.4(e1) has been modified to make clear that the estate proceeding rules in Chapter 28A continue to apply to elective share proceedings—except as modified or supplemented by G.S. 30-3.4(e1)(1), (2), and (3).

Who is Affected by the 2026 Elective Share Updates?

The updates to the elective share in S.L. 2025-33 apply to all petitions for elective share filed on or after January 1, 2026, regardless of the deceased spouse’s date of death.

Putting It All Together

In the part one, we discussed a fictional married couple named Bobby and Darla. Recall that they had been married for 20 years at the time of Bobby’s death, but he never got around to updating his will to include Darla. Recall also that Bobby had two sons (BJ and TJ) from a prior marriage, and they were named the beneficiaries of his will and the beneficiaries of Bobby’s large life insurance policy. Assume Bobby died on December 1, 2025. Bobby’s best friend Fred was named in his will as executor, and Fred is issued letters testamentary to become the PR of Bobby’s estate on December 15, 2025.

1. How long would Darla have to claim the elective share? Darla would have six months from the date letters testamentary were issued to Fred, or until June 15, 2026.
2. What version of the elective share law would apply? Because the application of the new law is tied to when the petition is filed and not when the decedent dies, it will depend on when Darla filed her petition for elective share. If Darla filed her petition before January 1, 2026, the proceeding would be governed by the old version of G.S. 30-3.4(b), but if Darla filed her petition on or after January 1, 2026, the proceeding will be governed by the updates to G.S. 30-3.4 in S.L. 2025-33.
3. What would Darla do to claim the elective share if she filed on March 1, 2026?
   1. Darla would file her petition with the clerk in the county where Bobby’s estate was opened.
   2. She would serve Fred as Bobby’s PR by sending a copy of the petition to him in a manner allowed under Rule 4. The clerk would not issue, and she would not serve the PR with, a summons.
   3. Because BJ and TJ are the beneficiaries of Bobby’s will and were named as the beneficiaries on Bobby’s life insurance policy, they are responsible persons, and Darla would need to serve each of them by sending a copy of the petition in a manner allowed under Rule 4. The clerk would not issue, and she would not serve BJ or TJ with, a summons.
4. What if Fred isn’t served with a copy of the petition until after the June 15, 2026 deadline passes? It doesn’t matter. Because Darla filed her petition with the clerk on March 1, 2026 (before the six-month deadline expired), she has timely filed her claim for elective share, even if the PR or responsible persons aren’t served until after June 15, 2026.
5. What happens next? Darla, Fred, BJ, or TJ could ask the clerk to schedule an optional, organizational hearing allowed by G.S. 30-3.4(e1)(2) and issue a notice of hearing that they then serve on all parties in accordance with Rule 5. If no one calendars the optional hearing, the remaining provisions of G.S. 30-3.4 would apply.

That’s all on the elective share for now. Next time, we’ll discuss the completion of the elective share process, focusing on how the value of the decedent’s assets are determined, paying special attention to the valuation updates in S.L. 2025-33.