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It’s possible but there are laws to protect surviving spouses. North Carolina has one of the strongest laws to protect spouses from disinheritance. Disinheritance is when someone who would expect to receive inheritance, like a spouse or child, does not inherit. This may be planned by the person who passed, or it may be unintended. The increase in second marriages and blended families makes this more common.

Like many other states, we have an Elective Share law that allows surviving spouses to claim a portion of the assets owned or controlled by their spouse at the time of death. The North Carolina law is generous to surviving spouses, because it allows for a claim of up to 50% of “Total Net Assets,” which may include land, houses, bank accounts, vehicles, insurance proceeds, retirement accounts, revocable trusts, and other assets. Most other states either have a lower percentage cap on the share amount, include less asset categories, or both.

For a surviving spouse to claim their Elective Share, they need to file and serve a Petition that starts a lawsuit. The Petition must be filed within the deadline or the claim will be lost. In other words, your spouse can disinherit you if you do not take formal legal action before the deadline. As in many areas of life, it pays to know your rights and how to claim your rights.

On the other hand, you can disinherit your spouse with a pre-nuptial agreement, or with expert planning. I am not going to explain how, because I represent surviving spouses claiming their Elective Share. Fortunately for my clients, it is rare that someone takes the steps necessary to disinherit their spouse and avoid application of the Elective Share law.

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