Can a husband disinherit their wife?

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Can a husband disinherit their wife?

When my friend’s husband died he willed all their assets to his kids. She just gets his social security. This doesn’t seem right.

Asked on March 10, 2019 under Family Law, North Carolina

Answers:

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

Answered 2 years ago | Contributor

Your friend's husband cannot disinherit her due to something known as an "elective share". This is designed to protect a surviving spouse from being treated unfairly in their spouse’s Will. Elective shares require that a certain percentage of an estate’s assets be left to the surviving spouse, even if the Will says otherwise. That having been said, the elective share only comes into play if a spouse is left with less than the statutorily required amount to be given. In NC, these amounts are based on the length of the marriage. The following percentages apply: if the couple was married for less than 5 years, the surviving spouse gets 15% of total net assets; 25% if the couple was married for more than 5 but less than 10 years; 33% if the couple was married for more than 10 but less than 15 years; 50% if the couple was married for 15 years or longer.

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

Answered 2 years ago | Contributor

Your friend's husband cannot disinherit her due to something known as an "elective share". This is designed to protect a surviving spouse from being treated unfairly in their spouse’s Will. Elective shares require that a certain percentage of an estate’s assets be left to the surviving spouse, even if the Will says otherwise. That having been said, the elective share only comes into play if a spouse is left with less than the statutorily required amount to be given. In NC, these amounts are based on the length of the marriage. The following percentages apply: if the couple was married for less than 5 years, the surviving spouse gets 15% of total net assets; 25% if the couple was married for more than 5 but less than 10 years; 33% if the couple was married for more than 10 but less than 15 years; 50% if the couple was married for 15 years or longer.


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