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Ask Dimitry Esquire Your Own Question
Dimitry Esquire
Dimitry Esquire, Attorney
Category: Estate Law
Satisfied Customers: 41221
Experience:  JA Mentor. I run my own practice that specializes in Estate Preparation and Administration
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What happens to estate, governed by a will and state laws,

Customer Question

What happens to estate, governed by a will and state laws, when spouse dies prior to husband
Submitted: 2 years ago.
Category: Estate Law
Expert:  Dimitry Esquire replied 2 years ago.
Thank you for your post. Please permit me to assist you with your concerns. I apologize but I am unclear as to your question. A spouse can be either a wife or a husband--could you please clarify what it is that you are seeking?
Customer: replied 2 years ago.
spouse is a wife
Customer: replied 2 years ago.
Estate is the husbands
Expert:  Dimitry Esquire replied 2 years ago.
Hi, In a situation where one spouse dies before the other, either the will governs or the local laws on intestate succession. Neither spouse can legally 'disown' the other, so even if the will may not name the surviving party, that spouse can demand a percentage of the estate based on length of the marriage. Here is the code below: § 30-3.1. Right of elective share.(a) Elective Share. - The surviving spouse of a decedent who dies domiciled in thisState has a right to claim an "elective share", which means an amount equal to (i) the applicableshare of the Total Net Assets, as defined in G.S. 30-3.2(4), less (ii) the value of Net PropertyPassing to Surviving Spouse, as defined in G.S. 30-3.2(2c). The applicable share of the TotalNet Assets is as follows:(1) If the surviving spouse was married to the decedent for less than five years,fifteen percent (15%) of the Total Net Assets.(2) If the surviving spouse was married to the decedent for at least five years butless than 10 years, twenty-five percent (25%) of the Total Net Assets.(3) If the surviving spouse was married to the decedent for at least 10 years butless than 15 years, thirty-three percent (33%) of the Total Net Assets.(4) If the surviving spouse was married to the decedent for 15 years or more,fifty percent (50%) of the Total Net Assets.(b) Repealed by Session Laws 2013-91, s. 1(d), effective October 1, 2013, andapplicable to estates of decedents dying on or after October 1, 2013.(c) Repealed by Session Laws 2009-368, s. 1, effective August 27, 2009, and applicableto decedents dying on or after October 1, 2009. (2000-178, s. 2; 2003-296, s. 1; 2009-368, s. 1;2013-91, s. 1(d).) ------------ Otherwise, if there is a will, the intestate share codes govern. This is the specific code that specifies what the surviving spouse receives, as it differs based on other children if any: § 29-14. Share of surviving spouse.(a) Real Property. - The share of the surviving spouse in the real property is:(1) If the intestate is survived by only one child or by any lineal descendant of only one deceased child, a one-half undivided interest in the real property;(2) If the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children or by lineal descendants of two or more deceased children, a one-third undivided interest in the real property;(3) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, but is survived by one or more parents, a one-half undivided interest in the real property;(4) If the intestate is not survived by a child, children or any lineal descendant of a deceased child or children, or by a parent, all the real property.(b) The share of the surviving spouse in the personal property is:(1) If the intestate is survived by only one child or by any lineal descendant of only one deceased child, and the net personal property does not exceed sixty thousand dollars ($60,000) in value, all of the personal property; if the net personal property exceeds sixty thousand dollars ($60,000) in value, the sum of sixty thousand dollars ($60,000) plus one half of the balance of the personal property;(2) If the intestate is survived by two or more children, or by one child and any lineal descendant of one or more deceased children, or by lineal descendants of two or more deceased children, and the net personal property does not exceed sixty thousand dollars ($60,000) in value, all of the personal property; if the net personal property exceeds sixty thousand dollars ($60,000) in value, the sum of sixty thousand dollars ($60,000) plus one third of the balance of the personal property;(3) If the intestate is not survived by a child, children, or any lineal descendant of a deceased child or children, but is survived by one or more parents, and the net personal property does not exceed one hundred thousand dollars ($100,000) in value, all of the personal property; if the net personal property exceeds one hundred thousand dollars ($100,000) in value, the sum of one hundred thousand dollars ($100,000) plus one half of the balance of the personal property;(4) If the intestate is not survived by a child, children, or any lineal descendant of a deceased child or children, or by a parent, all of the personal property.(c) When an equitable distribution of property is awarded to the surviving spouse pursuant to G.S. 50-20 subsequent to the death of the decedent, the share of the surviving spouse determined under subsections (a) and (b) of this section shall be first determined as though no property had been awarded to the surviving spouse pursuant to G.S. 50-20 subsequent to the death of the decedent, and then reduced by the net value of the marital estate awarded to the surviving spouse pursuant to G.S. 50-20 subsequent to the death of the decedent. (1959, c. 879, s. 1; 1979, c. 186, s. 1; 1981, c. 69; 1995, c. 262, s. 3; 2001-364, s. 6; 2012-71, s. 1.) Sincerely, ***** *****