When a spouse passes away, North Carolina law entitles the surviving spouse to a portion of the deceased spouse’s estate. The specifics will vary depending on estate plans, how property is titled, and a variety of other factors, but the state’s laws give spouses the right to claim an elective share. There is a formula for calculating a spouse’s elective share, and it is impacted by how long they were married before the other spouse’s death. If spouses are separated but not divorced, elective shares are not guaranteed.
In Re: The Estate of Robert Lee Hayes
Husband and Wife, in this case referred to as Decedent and Petitioner, separated in September 2017. Shortly after separation, Decedent executed a Last Will and Testament, giving Petitioner the smallest portion of his estate required by law. In April 2019, Petitioner filed for equitable distribution, and Decedent’s Answer to that request was that the parties did own a home that was purchased with marital funds.
In March 2020, a Memorandum of Judgment was entered, setting out all the details of their marital and separate property, including retirement plans and accounts. The Memorandum also included a provision that all claims for the division of property, spousal support, and attorney’s fees were waived and dismissed. A formal judgment reflecting the Memorandum’s terms was to be entered no later than April 14, 2020, but Decedent passed away before a formal judgment was submitted.
In May 2020, Petitioner filed a petition alleging she was entitled to an elective share of Decedent’s estate. The estate’s executrix denied Petitioner’s claim, asserting that she waived her right to an elective share under the Memorandum.
The trial court determined that the equitable distribution agreement did not constitute a waiver of Petitioner’s claim to Decedent’s estate. The executrix filed an appeal.
The Appeal
In North Carolina, a surviving spouse’s right to claim an elective share can be waived before or after marriage. The executrix asserted that the Memorandum, in which Petitioner waived all claims other than those in the Memorandum, acted as a waiver of the right to claim an elective share. The Court of Appeals stated that the Memorandum clearly dismissed and waived all claims the parties may have against each other. Despite the intention that a final order would be entered based on the Memorandum, it was a fully enforceable order when entered by the court.
The Memorandum did not explicitly mention waiving the elective share rights, but the appellate court calls this a distinction without a difference. It is not necessary for an agreement, order, or memorandum to specifically include a general waiver of all financial claims or mention waiving the right to an elective share, as long as there is another provision or language included that makes clear that is the intention. The Court of Appeals in this case stated that the Memorandum satisfied this requirement by including language that the parties waived all claims.
The Memorandum implicitly waived Petitioner’s right to claim an elective share of Decedent’s estate, and the case was remanded to the trial court for entry of a summary judgment for the executrix. In a situation such as this, it is wise to get the help of an experienced family law attorney.