So you want to leave everything to your kids and not your spouse? Sorry Charlie!
Did you know that in North Carolina, you cannot disinherit your spouse. State law provides an automatic inheritance right for married couples called the “elective share.” The amount of the elective share is based on the length of the marriage and can be anywhere from 15% to 50% of the deceased spouse’s estate. Even if your Will or your Trust specifically excludes your spouse, your spouse will still have the legal right to share in your estate under the law.
You may be asking yourself why would someone want to disinherit his or her spouse. Perhaps you wouldn't if you are in a traditional, first-marriage family. Spousal disinheritance is very common, however, in blended families and second marriages when a spouse either (1) has children of his or her own from a prior relationship or (2) has accumulated a sizeable estate prior to the new marriage so inheriting from the spouse is unnecessary.
If you want your assets to go to your children upon your death and not your spouse, then North Carolina law does you no favors. There is a work around, however, but only if you plan for it.
The simplest way around this nuance of North Carolina law is for the new spouse to sign a prenuptial or postnuptial agreement giving up his or her statutory right to inherit from your estate and to the right to claim the elective share.
Such an agreement (or contract, if you will) must be entered into willingly and voluntarily, and there must be full disclosure of the assets each party owns. In other words, the spouse giving up his or her inheritance rights must have some idea of the value of what they are giving up.
No two families are exactly alike, and no two situations are exactly the same. So, if you are considering leaving the majority of your estate to someone other than your spouse, then please consult with an estate planning attorney to discuss the ramifications of such a decision for your particular situation.