2005 North Carolina Code - General Statutes § 30-3.1. Right of elective share.

Article 1A.

Elective Share.

§ 30‑3.1.  Right of elective share.

(a)       Elective Share. – The surviving spouse of a decedent who dies domiciled in this State has a right to claim an "elective share", which means an amount equal to (i) the applicable share of the Total Net Assets, as defined in G.S. 30‑3.2(4), less (ii) the value of Property Passing to Surviving Spouse, as defined in G.S. 30‑3.3(a). The applicable share of the Total Net Assets is as follows:

(1)       If the decedent is not survived by any lineal descendants, one‑half of the Total Net Assets.

(2)       If the decedent is survived by one child, or lineal descendants of one deceased child, one‑half of the Total Net Assets.

(3)       If the decedent is survived by two or more children, or by one or more children and the lineal descendants of one or more deceased children, or by the lineal descendants of two or more deceased children, one‑third of the Total Net Assets.

(b)       Reduction of Applicable Share. – In those cases in which the surviving spouse is a second or successive spouse, and the decedent has one or more lineal descendants surviving by a prior marriage but there are no lineal descendants surviving by the surviving spouse, the applicable share as determined in subsection (a) of this section shall be reduced by one‑half.

(c)       Death Taxes. – Death taxes shall be taken into account as a claim against the estate in determining Total Net Assets only to the extent that the assets received by the surviving spouse do not qualify for the federal estate tax marital deduction pursuant to section 2056 of the Code or similar provisions under the laws of any other applicable taxing jurisdiction. The amount of such claims shall equal the difference between the amount of such death taxes as finally determined and the amount such death taxes would have been if all assets received by the surviving spouse had qualified for the federal estate tax marital deduction pursuant to section 2056 of the Code and similar provisions under the laws of any other applicable taxing jurisdictions. (2000‑178, s. 2; 2003‑296, s. 1.)