§ 29-30. Election of surviving spouse to take life interest in lieu of intestate share provided.
Article8.
Election to Take LifeInterest in Lieu of Intestate Share.
§ 29‑30. Election ofsurviving spouse to take life interest in lieu of intestate share provided.
(a) In lieu of theintestate share provided in G.S. 29‑14 or G.S. 29‑21, or of theelective share provided in G.S. 30‑3.1, the surviving spouse of anintestate or the surviving spouse who has petitioned for an elective shareshall be entitled to take as his or her intestate share or elective share alife estate in one third in value of all the real estate of which the deceasedspouse was seised and possessed of an estate of inheritance at any time duringcoverture, except that real estate as to which the surviving spouse:
(1) Has waived his orher rights by joining with the other spouse in a conveyance thereof, or
(2) Has release orquitclaimed his or her interest therein in accordance with G.S. 52‑10, or
(3) Was not required bylaw to join in conveyance thereof in order to bar the elective life estate, or
(4) Is otherwise notlegally entitled to the election provided in this section.
(b) Regardless of thevalue thereof and despite the fact that a life estate therein might exceed thefractional limitation provided for in subsection (a), the life estate providedfor in subsection (a) shall at the election of the surviving spouse include alife estate in the usual dwelling house occupied by the surviving spouse at thetime of the death of the deceased spouse if such dwelling house were owned bythe deceased spouse at the time of his or her death, together with theoutbuildings, improvements and easements thereunto belonging or appertaining,and lands upon which situated and reasonably necessary to the use and enjoymentthereof, as well as a fee simple ownership in the household furnishings therein.
(c) The electionprovided for in subsection (a) shall be made by the filing of a notice thereofwith the clerk of the superior court of the county in which the administrationof the estate is pending, or, if no administration is pending, then with theclerk of the superior court of any county in which the administration of theestate could be commenced. Such election shall be made:
(1) At any time withinone month after the expiration of the time fixed for the filing of the petitionfor elective share under Article 1A of Chapter 30, or
(2) In case ofintestacy, then within 12 months after the death of the deceased spouse ifletters of administration are not issued within that period, or
(3) If letters ofadministration are issued within 12 months after the date of the death of thedeceased spouse, then within one month after the expiration of the time limitedfor filing claims against the estate, or
(4) If litigation thataffects the share of the surviving spouse in the estate is pending, then withinsuch reasonable time as may be allowed by written order of the clerk of thesuperior court.
(c1) The notice ofelection shall:
(1) Be directed to theclerk with whom filed;
(2) State that thesurviving spouse making the same elects to take under this section rather thanunder the provisions of G.S. 29‑14, 29‑21, or 30‑3.1, asapplicable;
(3) Set forth the namesof all heirs, devisees, legatees, personal representatives and all otherpersons in possession of or claiming an estate or an interest in the propertydescribed in subsection (a); and
(4) Request theallotment of the life estate provided for in subsection (a).
(c2) The notice ofelection may be in person, or by attorney authorized in a writing executed andduly acknowledged by the surviving spouse and attested by at least one witness.If the surviving spouse is a minor or an incompetent, the notice of electionmay be executed and filed by a general guardian or by the guardian of theperson or estate of the minor or incompetent spouse. If the minor or incompetentspouse has no guardian, the notice of election may be executed and filed by anext friend appointed by the clerk. The notice of election, whether in personor by attorney, shall be filed as a record of the court, and a summons togetherwith a copy of the notice shall be served upon each of the interested personsnamed in the notice of election.
(d) In case of electionto take a life estate in lieu of an intestate share or elective share, asprovided in either G.S. 29‑14, 29‑21, or 30‑3.3(a), the clerkof superior court, with whom the notice of election has been filed, shallsummon and appoint a jury of three disinterested persons who being first dulysworn shall promptly allot and set apart to the surviving spouse the lifeestate provided for in subsection (a) and make a final report of such action tothe clerk.
(e) The final reportshall be filed by the jury not more than 60 days after the summoning andappointment thereof, shall be signed by all jurors, and shall describe by metesand bounds the real estate in which the surviving spouse shall have beenallotted and set aside a life estate. It shall be filed as a record of courtand a certified copy thereof shall be filed and recorded in the office of theregister of deeds of each county in which any part of the real property of thedeceased spouse, affected by the allotment, is located.
(f) In the electionand procedure to have the life estate allotted and set apart provided for inthis section, the rules of procedure relating to partition proceedings shallapply except insofar as the same would be inconsistent with the provisions ofthis section.
(g) Neither thehousehold furnishings in the dwelling house nor the life estates taken byelection under this section shall be subject to the payment of debts due fromthe estate of the deceased spouse, except those debts secured by such propertyas follows:
(1) By a mortgage ordeed of trust in which the surviving spouse has waived his or her rights byjoining with the other spouse in the making thereof; or
(2) By a purchase moneymortgage or deed of trust, or by a conditional sales contract of personalproperty in which title is retained by the vendor, made prior to or during themarriage; or
(3) By a mortgage ordeed of trust made prior to the marriage; or
(4) By a mortgage ordeed of trust constituting a lien on the property at the time of itsacquisition by the deceased spouse either before or during the marriage.
(h) If no election ismade in the manner and within the time provided for in subsection (c) the survivingspouse shall be conclusively deemed to have waived his or her right to elect totake under the provisions of this section, and any interest which the survivingspouse may have had in the real estate of the deceased spouse by virtue of thissection shall terminate. (1959, c. 879, s. 1; 1961, c. 958, ss. 4‑8;1965, c. 848; 1997‑456, s. 27; 2000‑178, s. 3.)