Can a living Will override spousal rights?

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Can a living Will override spousal rights?

Asked on September 11, 2015 under Estate Planning, North Carolina

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

One spouse cannot disinherit the other. By virtue of "elective share" statutes, a spouse is prevented from either partially or completely disinheriting a surviving spouse by requiring a decedent to leave a minimum percentage of the decedent&rsquos estate to them this amount is known as the "elective share amount". In the event the surviving spouse does not receive this mount, then the surviving spouse can claim an elective share of the decedent&rsquos net assets.
Under NC law, the minimum percentage of the dece­dent&rsquos net assets which must be allocated to their surviving spouse is

If the decedent and the surviving spouse were married less than 5 years, the surviving spouse is entitled to 15% of the decedent&rsquos net assets
If the decedent and the surviving spouse were married at least 5 years but less than 10 years, the surviving spouse is entitled to 25% of the decedent&rsquos net assets
If the decedent and the surviving spouse were married to each other at least 10 years but less than 15 years, the surviving spouse is entitled to 33% of the decedent&rsquos assets and
If the decedent and the surviving spouse had been married to each other 15 years or more at the time of the dece­dent&rsquos death, the surviving spouse is entitled to 50% of the decedent&rsquos net assets.


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