Ever found yourself pondering the fairness of a will? Wonder no more, as Jane Dearwester, a fierce litigation attorney, joins me, Greg McIntyre, to unravel the complexities of elective share in estate planning. Imagine the shock of being left out of your spouse's will, or receiving a mere dollar—this discussion is all about how NC General Statute 30-3.1 swings open the doors for a surviving spouse to claim a piece of the pie, regardless of what the will says. We're peeling back the layers on an often misunderstood part of estate law, discussing how the length of a marriage can influence the cut you're entitled to, with a full half up for grabs for those in it for the long haul. And for a little extra spice, we're distinguishing the elective share from something called the spousal allowance—because who wouldn't want the first dibs on $60,000 of personal property?
Pull up a chair and join the conversation that's part heart, part humor, and entirely essential for safeguarding your tomorrow. Jane's anecdotes and my own take on the emotional rollercoaster of estate planning will not only enlighten but also entertain. It's a candid look at why a well-thought-out estate plan isn't just about the end—it's about fairness and protection when life throws its curveballs. So, for those curious about their rights, or eager to secure their legacy with a sprinkle of levity, this is the episode you won't want to miss. Grab a notepad, and let's ensure your estate planning is as airtight as the stories we share.
Speaker 1:
Hi, I'm Greg McIntyre. We're going to talk about something really cool. I'm with attorney Jane Deerwester, which is a litigation attorney at McIntyre Elder Law, and Jane handles, and I've get shorted in a will, a trust or any other type of estate. So let's say, you know, I really ticked my wife off the last few years of our marriage.
Speaker 1:
Okay, she's not happy with me because of something I'm doing or I did which is totally possible and that sounds like a fiction and and she writes me out of her will or she leaves me $1. She says, greg, you get $1. And since she's taken all my money throughout my life, she has all of it, all my property. Like, I'm going to get like a dollar if she passes away. And you know what she does she passes away. Steph, don't do this, I love you, but she passes away. Okay, if that happens and we go to this will reading, okay, we're at the will reading and I'm shocked and appalled that I'm getting a dollar, which is a really Southern, backhanded way to cut somebody out of a will I'm going to leave them a dollar, okay.
Speaker 2:
Worse than nothing.
Speaker 1:
Right, because you're acknowledging I'm going to give you a smile and some sweet tea and stab you in the back at the same time, okay, but I'm not going to tell you directly that I don't like you. I'm cutting you out of the will, all right. So? So, yes, there is something that I can do as a spouse. As her spouse, I could utilize NC General Statute 30-3.1, 30-3.1, rights to elective share, and that means I can elect to take a certain portion of her total net assets. That doesn't mean probate assets, that doesn't mean trust assets. That means all the assets that she had that she's passing along to her boyfriend Okay, and she's leaving me, her hardworking husband, a dollar, okay. So I'm like I feel a certain way about her boyfriend getting a hundred percent of the total of that and that assets minus a dollar. And because we've been married for over 15 years, then I can take 50%. I can claim and file a petition for elective share within the estate, within the probate estate, for 50% of total net assets, which means, again, not just what's changing title through the probate estate, not what's been placed in her trust, but both of those things in addition to I believe it's any life insurance that's going by beneficiary, in addition to any investment accounts, iras, anything else where the boyfriend's the beneficiary, anything else where the boyfriend's the beneficiary, where someone other than the spouse is the beneficiary, and we can sit down when we do in a consult, sit down and total all those assets. So, okay, these are all the assets. No-transcript. It could be other property, personal property, vehicles, diamond rings. It can also be, again, retirement accounts, insurance, bank accounts. But just because I am slighted or shorted as a spouse and I feel that way doesn't mean I have to take it.
Speaker 1:
The North Carolina law has cared for spouses in the elective share statute depending on the time that you've been married. So the longer you've been married, the more that percentage goes up and it caps out 15 years plus equals 50%. So it doesn't matter if she tries to cut me out. I can still claim up to 50% as long as we've been married 15 years or more. And if you've been married we've been married less than 15 years, then I get a lower percentage than 50%. Okay, but I still get more than my dollar. She was leaving me in the will, okay, and that's essentially the elective share and I've used elective share, you know, for an attorney, jane, it's great to have your eye on elective share. When you're meeting with someone and reviewing a will or a probate case, someone in reviewing a will or a probate case, it's a great tool to go back and really help a client who's a spouse right Cover what they need. And I know you're. You're handling some elective shares too.
Speaker 2:
How's it different from the spousal allowance?
Speaker 1:
So it's not.
Speaker 2:
That's what I was like. Is that the same thing?
Speaker 1:
same thing, and it can be. It is not the same thing, okay. So a spousal allowance allows a spouse, without opening a probate estate, to simply throw down. I want 60 000 of personal property only, okay, the first,000 of personal property only. Okay, the first $60,000 of personal property only, so I can get my first $60,000 there. Now that would be lumped in the overall 50% of total net assets, gotcha In that calculation, right. But then I want to open the estate. Or, if the estate's open, I want to file a petition for elective share within that probate estate to make sure that I max out my 50%, that I'm allowed. Okay, and I may be the one you might have to handle my probate estate after Stephanie sees this, okay, after my wife sees this. But it's a good illustrative tool and I tell all kinds of stories. You guys, if you come to one of our seminars, I probably kill myself off a number of different ways, or my wife to illustrate different points, which is fun about being an estate planning and elder law attorney.
Speaker 2:
You got to make it light somehow.
Speaker 1:
You got to keep it light. That's right, that's right.
Speaker 2:
We're talking about some pretty big decisions, heavy subjects, life and death. So I agree, when I'm doing my seminars and speaking to clients, we have to try to keep it light a little bit.
Speaker 1:
That's why we have the dead Greg series.
Speaker 2:
Yes.
Speaker 1:
Because something people really do, jane, have trouble with I think men more than women Is facing our own mortality. Yes, is talking about death, because we're all in the same game. Yeah, it's such a short time period we're here and we're all in the same game. It's such a short time period we're here and we're all going to die.
Speaker 2:
That's something I say sometimes in my seminars. I said, hey, I hate to break it to you, but none of us are going to live forever. We don't have that technology.
Speaker 1:
I'll give myself a shot, Jane. I told you I'm going to 150, then I'm being frozen. I believe it, I put myself in your conference room in the corner. I'll be out in a thousand years.
Speaker 2:
We're ready.
Speaker 1:
But or you do the Silicon Valley way, which is escape velocity. You just have to make it one more day. It's just always making it one more day.
Speaker 2:
I see.
Speaker 1:
Right, so. So All right Heavy subjects. I think people need to understand that once you embrace it like, look, this is just, death is part of life, and I want to plan to protect my spouse care for him or her. I want to plan to protect myself during my life and I want to perhaps leave a legacy for my children and grandchildren. And I want to perhaps leave a legacy for my children and grandchildren minimize taxation and maximize what I'm able to carry on Right and help my family build over time.
Speaker 2:
Yeah, I say the ultimate act of adulting Right. It is adulting at its finest at its height.
Speaker 1:
I think it is a high level of accountability and responsibility. Yes, it is. And if you're a spouse who, on purpose or inadvertently, gets really shorted in an estate, a will, a trust, an estate plan which could be on purpose, I mean, you know, we could be hired to represent just one spouse.
Speaker 2:
OK, and who do? The other spouse, right? How about gun for our client, right? Well, we see that a lot with you know, blended families like second, third, fourth marriages, where people are coming in with different backgrounds, different children from different biological parents, different children from different biological parents, and they really do come in with their own idea of what they want to do. And maybe this spouse number three. They already have their own money and they say, no, I don't want this spouse to get anything. And everybody's seemingly in agreement with it at the time, and then maybe not so much. Uh, after that person passes away.
Speaker 1:
True, yes, yeah, I mean, oddly enough, um a little money. Yes, for a family, especially a blended family.
Speaker 2:
Yeah.
Speaker 1:
Right With stepmoms and dads. It's like blood in the water to sharks.
Speaker 2:
Sometimes they just yes, they come out of the woodwork and get into a frenzy Right Fighting over that.
Speaker 1:
So, but yes, they come out of the woodwork and get into a frenzy Right. So, but we can help. Yeah, I would say, if you wanted to sit down with myself or one of our attorneys and talk about your estate plan so you can plan around these things, you know, if elective share could be an issue to help you where you've maybe not been left your fair share out of a relationship where a spouse has passed away, then I would offer a free consult and you can take advantage of that by calling 1-888-999-6500. I'm sorry, 6600. I don't even know my own phone number 1-888-999-6600. Or you can go online to mcelderdahlcom, slash scheduling and schedule right on our calendars online, and I hope everybody out there has a great day. Stay tuned for the next Elder Law Report. Thank you, jane, so much for being a part of this one.
Speaker 2:
Hey-o, I guess we're done, yeah. Yeah, I think he has to exit. I don't know if he's going to jump back on, but I think he has to exit to stop the recording or it looks like it's.
Speaker 1:
I think we all do, we all do you're right, okay, bye, bye.