Guest Post: Common Law Marriage Development

February 9 2010 by Tiffany Provence in Marriage |No Comments

With more and more people moving to South Carolina from other states, the question of how our unique common law marriage situation changes their relationships is a common one. This guest post answers that question:

When couples begin their relationship together in a state that does not recognize common law marriage, it does not automatically transform into a common law marriage when they move to a state that does recognize it. The South Carolina Supreme Court held in Callen v. Callen (2005 S.C. Lexis 265) that an impediment to marriage must be removed in a common law marriage, just as in a “regular” marriage, and afterward, there must be a new mutual agreement either by way of a civil ceremony or a new agreement to enter into a common law marriage. The full text of this opinion may be read here.

This post was contributed by Ben Stevens of Turnipseed, Brannon & Stevens. He is the author of the South Carolina Family Law Blog.

Common Law Marriage in South Carolina

January 24 2010 by DCausey in Marriage, Probate 101 |1 Comment

As Tiffany has already told you in an earlier post, the Probate Court is responsible for issuing marriage licenses in South Carolina.  She also pointed out that the strange beast we call common law marriage still exists in our state—at last count, only nine other states continue to recognize it.  While most issues related to marriage (and divorce) are dealt with in the Family Court, the Probate Court has the authority to validate a common law marriage.  This is not the easiest thing to prove in the Probate Court, because if the matter is to be heard there, one of the parties must be, well… unavailable.

In South Carolina, if there are no impediments to the marriage, a party must show the court that four requirements have been met before a common law marriage can be validated.  First, both parties must have the capacity to enter into a marriage.  Neither party can be mentally ill, already married to another or impaired at the time the other three requirements were met.

Next, there must have been an agreement between the parties to live as husband and wife.  It could have been an informal agreement, but one party alone does not get to make the call—there must be some evidence of an actual and mutual agreement to live publicly as husband and wife.

Third, the parties must hold themselves out to the public as husband and wife.  So, not only do they have to agree to live as husband and wife, other people in the community must believe that they are married.

Lastly, some cohabitation is necessary to prove the existence of a common law marriage.  I once had neighbors who were legally married but lived across the street from each other.  It worked for them (and sometimes doesn’t sound like such a bad idea), but the court would probably not accept their arrangement as proof of a common law marriage.

Contrary to popular belief, there is no specific length requirement for cohabitation.   I’ve heard people say (in very authoritative voices) that a couple has to live together for at least a year before they are “common law married.”  I’ve heard others (just as authoritatively) say the required time is seven years.  The fact is that the courts have not set a specific rule, but cohabitation of a short duration is not likely to create a common law marriage unless there is strong evidence to support the existence of the other requirements.

A common law marriage is always hard to prove, especially in the Probate Court.  Expect a fight, because proving the existence of a marriage will almost always decrease what other heirs are entitled to take from an estate. And, of course, immediately hire an attorney familiar with this area of the law to ensure your rights are protected.

So how long is this going to take?

January 18 2010 by Tiffany Provence in Probate 101 |1 Comment

Perhaps one of the most common questions when people start the probate process is, “Exactly how long is this going to take?” Unfortunately, the answer to this question is very specific to your case and often beyond the control of your attorney. And perhaps the biggest factor in determining when the estate can close is how soon you begin. Yes, it’s a well known fact that in order to complete the process, you first must actually begin the process. Here are a few considerations:

1) There are a variety of reasons why people delay the opening of an estate, the most common of which is grief. It is absolutely understandable that when a loved one passes away, the last thing on your mind is hiring an attorney or locating your local probate court. And while that is perfectly understandable, failure to start the probate process quickly can cause problems. Take a week or two to deal with the most pressing issues and if you still don’t feel you a re ready to begin, ask a trusted friend or family member to help you.

2) In South Carolina, it is actually a misdemeanor to withhold a decedent’s last will from the court for more than thirty (30) days. This means that if you have the original will in your possession, you need to get it to the court promptly. Hiding a will is never a good idea as it leads to speculation, confusion and chaos amongst those who feel they might be inheriting from the decedent.

3) Failure to open an estate in a timely fashion may lead to another party getting priority to serve as Personal Representative. In fact, if you have not opened the estate within forty-five (45) days, a creditor can open it on your behalf. Again, if you are grieving and unable to deal with these issues, find someone to help you as having a creditor handle the affairs of the estate is never in anyone’s best interest (except theirs).

Once you have opened the estate, you can expect it to remain open for a minimum of eight (8) months, most likely it will take closer to a year or longer from start to finish. Even the best attorney can’t complete it in less time as the law requires the estate be open that long in order for creditors to have time to make claims for any money they are owed by the decedent. Here are a few more things to consider:

1) The eight (8) months begins from the date that you publish the court approved creditor’s notice in the local paper. So, just picking up the paperwork from the court is not enough, you must ensure the Personal Representative quickly gets that notice in the paper (some courts do this for you, others require you to do it on your own).

2) Attempting to convince the court that you already know everyone your loved one owed will never work, although just about every family has hoped to shorten the process by making this argument. The time set by law can not be waived, shortened, or changed for any estate.

3) Once you have opened the estate, your attorney should provide you with a general guideline of what you need to do and when in order to satisfy the courts. If you are attempting to handle the estate without legal guidance, make sure to ask the court for a list of their deadlines so that you are clear on what documents need to be submitted and when so that you don’t further delay the estate.

In closing, know that while good estate planning can eliminate many of the hassles of probate, nothing can change the court’s requirements for probating an estate. Only those who have no real property, no titles assets (cars, boats, mobile homes) and no personal property or assets that total above ten thousand ($10,000) can skip the formalities by using a process called a small estate, which will be the topic of a future post.

Who will be the Personal Representative? (Part II)

December 14 2009 by Tiffany Provence in Estate Planning Tips, Probate 101 |1 Comment

When people pass away without wills, the determination of who can be appointed as their Personal Representative (P.R. for short) can get sticky. Here are some of the most common issues that arise.

Minor Children – If the decedent is not legally married at death (whether by divorce, death or perhaps they had the common sense never to get married in the first place), their children have the right to serve as P.R. But, what if their children are minors? Obviously, a minor is not “fit” to serve (minimum age is 18) and therefore the S.C. Probate Code determines who is next in line. Often times in these situations, people assume that it would be the decedent’s parents; however, that is not the case.

In South Carolina, if you leave behind no will and have minor children, before YOUR parents are entitled to serve, the appointment will go to THEIR other parent or guardian. That’s right, your ex-spouse (or baby mama as the case may be) will suddenly be in charge of everything you own. And, it doesn’t matter that they have told 100 people they hate you or that they took you to the cleaners in family court, unless it can be shown that they are unfit to serve due to a criminal history, incarceration, incapacity, etc. then they get the job. The bottom line is that since you didn’t choose someone in your will, the law assumes that the best person to serve is the legal guardian of your primary heir. This scenario gets even more entertaining when you have children with more than one person so that the court must now referee between the two. Enter Jerry Springer . . .

Separation – Because South Carolina does not have “no fault” divorce, many couples have to lived separated for 1 year in order to qualify for a divorce. To avoid expenses and complications, many of them don’t part ways through legal documentation and instead simply “split up.” While this may save you money in family court, the consequences can be disastrous in probate court. The S.C. Probate Code is clear in Section 62-2-802 what is required before a spouse will loose their entitlement to be considered a “spouse.” Essentially, one of the following has to have occurred:

A divorce or annulment. And, it isn’t even enough for a couple to “think” they are divorced. The Judge has to actually have signed the decree. In a landmark case titled Hatchell-Freeman v. Freeman a wife was actually entitled to serve as P.R. and entitled to receive a share of the estate even though they had attended the final hearing on their divorce (simply because the Judge had not signed the decree).

A decree of separate maintenance or property settlement agreement acknowledged by the court which which terminates these rights.

Adultery, abandonment or other acts of the spouse are not relevant to the Probate Court under these sections. So, the bottom line is that if you find yourself in this situation you need legal help and a properly drafted will to ensure your ex isn’t in control against your wishes.

Common Law Marriage – We will discuss common law marriage in greater detail in a future post but for purposes of this discussion, just know that common law marriage must be affirmatively proven in the court and until that time the question of who has priority to serve as the Personal Representative may be difficult to answer. Because a spouse has priority to serve, the question is – who serves while it is determined whether or not someone is the spouse? In this case, the court may rely on a Special Administrator to handle the estate until the marriage issue can be resolved. Or, in a perfect world, the potential spouse and other heirs would agree by consent as to who will serve in the interim.

There is no shortage of court hearing to determine who will serve as Personal Representative. And, even after the appropriate person is appointed, parties may find themselves litigating whether or not that person is doing the job properly. In the end, the only way to protect your assets from these disputes is to make these choices before you go!

Pick Me, Pick Me! Who gets to be the Personal Representative of the estate? (Part I)

December 12 2009 by Tiffany Provence in Probate 101 |4 Comments

For an estate to be opened, there must be someone named as the Personal Representative (formerly called an Executor or Administrator). This person is responsible to the court, creditors of the estate and the heirs to ensure that the estate is properly managed and distributed.

Luckily, there are many estates where the court does not have to get involved in choosing the appropriate person.  For example, when you write your will, it should always state whom you wish to serve as the Personal Representative. It’s also wise to name an alternate in case your first choice is not available.

However, when you die without a will (this is called “intestacy”), the court will have to determine who should be in charge. South Carolina Code Section 62-3-203 determines who has the priority to serve, but the Judge may use his/her discretion to determine if someone with priority is not suitable (or disqualified) for the appointment. Some examples will help explain who gets to serve but remember again that these only apply if you don’t name someone in your will.

The Spouse – Your spouse will be the top pick to serve as Personal Representative (P.R.) if you are lawfully married at the time of your death. This can seem clear but a lot of confusion can arise when couples are separated, estranged, or allegedly common law married. S. C. Probate Code Section 62-2-802 outlines what actions will terminate a spouse’s rights to serve. A spouse serving can also cause problems when the children involved are from a previous marriage. Despite the possibility for future conflicts, the spouse is entitled to serve and will be appointed by the court unless it can be shown that he/she is unfit to serve. A person may be unfit to serve if they are incarcerated, have serious financial problems (check fraud, bankruptcy, history of financial wrongdoings), or are incapacitated. Even if the spouse can’t serve, they are entitled to nominate someone to serve on their behalf.

The Children – If there is no spouse, or the spouse is unable to serve (or chooses not to and doesn’t name a nominee to serve in their place) then the children are the next in line. If there is only one child, the court will appoint that child. The debate usually begins when there are multiple children. Since all children have equal priority to be the P.R., the court will choose unless all of the children can agree. When left to the court, the Judge will consider many factors including the opinions and nominations of the heirs, financial stability, criminal history, proximity to the court and many others.

While these two rules will address the majority of cases, there are more complicated issues that arise with minor children, divorced spouses, and those with no children or spouse that will be discussed in Pick Me, Pick Me Part II.

Choosing a Personal Representative

December 11 2009 by Tiffany Provence in Estate Planning Tips |No Comments

Choosing your Personal Representative

Whether they are called Personal Representatives (P.R. for short), Executors or Administrators, they all have the same purpose – to manage your assets, file proper documentation with the courts and IRS, deal with any creditors you may have had and properly distribute your assets to your heirs. It’s not an easy job and it will be best for everyone if you give some thought today into who would be the best person to handle this for you after you are gone.

Here are some considerations I discuss with all of my estate planning clients before they make this choice.

Age – When naming a P.R., try to name someone younger than yourself. Most people don’t update their wills regularly and statistically, if you name someone older than yourself (a parent, older sibling, etc.) they will have already passed away. There are plenty of exceptions to this “rule” when people want to name a spouse or when they have an illness that realistically will bring about their death before those that are older than they are. If you do choose someone older than you, ensure that your alternate (second choice) is younger and be prepared to update your document if they pass away or become incapacitated.

Location – It is not necessary that the person you choose live in the same city or state that you do; however, if you have good options close to home it will make their life easier. Being someone’s P.R. will require the person to collect and manage all of your assets (most of which will be where you lived) and can require several trips to the court as well. Personal Representatives who must travel repeatedly usually end up with high travel expenses, missed days from work, and delays from the inability to be nearby when needed.

Financial Stability – If someone can’t manage their own finances, why would you ask them to manage yours? Choosing a P.R. means entrusting someone with full access to your bank accounts, investments, personal property and more. For this reason, you need to ensure the person you choose is financially responsible and trustworthy. This is a lot of power to give someone and putting that power in the wrong hands can have disastrous consequences for your heirs. If you don’t have anyone in your life that is trustworthy, this may be the time to think about using a professional P.R. (attorney, bank, etc.) or putting in your will that you want your P.R. to be bonded.

Relationship with your heirs – Don’t overlook that this person will be working for and with your heirs. If your brother and wife have never really gotten along, it would not be wise to name him as the P.R. when your primary heir is your wife. Instead of considering what type of relationship your potential P.R. has with YOU (which is irrelevant because you will be dead), think about what type of relationship they have with your heirs. Blended families, second marriages, and strained family relationships can make this a challenge.

In closing, after you have chosen your P.R. and an alternate, it’s a good idea to let the people know they have been named. Some will be honored and others may decline (especially if they have done it before).  Either way, you will have the chance to know their willingness and to discuss with them any problems you foresee with your estate. And remember, if you think choosing you own P.R. is a daunting task, imagine how the probate court feels if they have to make the choice for you after you are gone.

What exactly is probate?

December 7 2009 by Tiffany Provence in Probate 101 |No Comments

Technically, the word Probate means “to obtain the official approval of, as of an instrument purporting to be the last will and testament.” (Thanks Webster!) However, in the common sense, probate describes the process by which the Probate Court oversees the transfer of assets from someone who has passed away (the “decedent”) to those entitled to receive them. The word probate has become tainted by all the “avoid probate” propaganda used when financial planners or others are trying to sell trusts. In reality, what you are really trying to avoid is taxes and creditors, not “probate,” so don’t fear the court. In fact, as Probate Court Judges are the only elected members of the judiciary in the state, they generally strive to be as helpful as possible.

A review of assets belonging to the decedent at their time of death is required in order to know whether or not you will need to go through probate. For example, if the decedent owned any real property (real estate) or titled assets (cars, vehicles, boats, mobile homes) in their name alone, you will definitely be required to go through the probate process. Additionally, if the decedent held bank accounts, investment accounts, CD’s or other assets in their names alone, probate is the only way to get access to this property. Even if the decedent didn’t own any assets, probate may still be required as only a Personal Representative appointed by the Probate Court may act on behalf of the decedent to bring a lawsuit. So, now that you realize your probably can’t “avoid probate”, what do you need to know?

A decedent’s estate must be probate in the county where they are domiciled. In most cases, this is their place of residence. However, it is possible to have more than one residence but you can only have one domicile. If your loved one lived in multiple places, a probate attorney or the court may be able to assist you in determining which court is appropriate. Each county in South Carolina has a Probate Court which is almost always located in the county courthouse. Once you have determined which court you must file in, it is wise to contact that court for specific office hours and to determine if you must have an appointment to open an estate. In some cases, if you are particularly internet savy or have an attorney assisting you, you may not have to appear in the court at all.

To open the estate in South Carolina, you must have proof of death. This is generally accomplished with a death certificate but in unusual circumstances proof from another government agency can be provided. If the decedent had a will, you will also need to deliver the original to the court (where it will remain). The minimum fee to open the estate is $25, made payable directly to the probate court. Additional court costs will be due once the court determines the extent of the decedent’s assets.

Last, but not least, the person who appears at the court should be the person who intends to serve as the Personal Representative (a general term in South Carolina which includes Executors and Administrators). The will should name the Personal Representative. If there is not a will, S.C. Code determines who has priority to handle the decedent’s affairs. In general, priority when no will exists is as follows:

  • Spouse of the decedent
  • If there is no spouse, children of the decedent (minor children present unique issues)
  • If no spouse or children, other heirs of the decedent
  • After 45 days, a creditor of the estate may ask to be appointed

People often wonder how quickly they should go to the court to begin the process and there isn’t a perfect answer to that question. The law requires that any person holding the original will of another who has passed away should present it to the court within 30 days; therefore, waiting beyond that period isn’t recommended. Meanwhile, heading to the court before you have the death certificate is premature. In some cases, the only assets available to bury the decedent may be held solely in the decedent’s name which means moving quickly is required. In general, how quickly you go is likely determined by the unique circumstances in your case.

Probate Court’s role in marriage

December 3 2009 by Tiffany Provence in Marriage |No Comments

Unrelated to the other functions of the Probate Courts in South Carolina, this court is responsible for issuing marriage licenses. Therefore, if you want to (or just have to) get married in the state of South Carolina, you need to be aware of the following requirements.

First, the bride and groom must appear together at the Probate Court and file a written application. You do not have to be a resident of South Carolina to apply, nor do you have to apply in the county where you plan to marry. Cost vary per county but average around $40 – $70 (often required in cash). The application will ask for the full name, social security number, age, and place of residence of the bride and the groom. It is a sworn statement that must be signed by the bride and the groom and then notarized in the office of the probate judge. It’s important to bring proper identification (passport or a driver’s license is best) with you to the court. And, if you are under 18, you will have to drag a parent and birth certificate along as well.

Once the application is filed, you must wait 24 hours before picking up your license. So, plan ahead and don’t wait until the Friday prior to the wedding to apply. Judges in South Carolina can not waive the waiting period regardless of how much money you have spent on your upcoming nuptials.

In South Carolina, marriage licenses do not expire so there is no harm in getting your early. However, just like a driver’s license – just because you have it doesn’t mean you MUST use it. Marry with caution. Other interesting tidbits about marriage in South Carolina:

  • Despite rumors to the contrary, common law marriage does still exist in South Carolina.
  • Yes, it’s true. You can marry your cousin in South Carolina.
  • There is no minimum time between a divorce and remarriage; however, some counties will ask for a copy of the divorce decree if it’s been less than 1 year.
  • Blood test are not required.
  • You can be married by a notary or clergy member.
  • While the Probate Court may issue you the license to get married, it is the Family Court’s responsibility to help you get a divorce!

Introduction

November 30 2009 by Tiffany Provence in Introduction |No Comments

I’ll address the question of WHY you have to go through probate when someone passes away in a future post. For today, I would just like to introduce myself and explain why I’ve chosen to blog about an otherwise uninteresting and often annoying area of the law.

My name is Tiffany Provence, an attorney living and practicing outside of Charleston, S.C. in Summerville. And, while I would love to blog about fashion, technology or exotic travel, I have little experience or knowledge in anything that exciting. However, after more than 10 years as a Probate Judge for Dorchester County, S.C., I have learned that there is a severe shortage of information on this topic for both the public and attorneys who need a primer on this area of the law.

And so, why would you need to know anything about probate law? Perhaps a family member has recently passed away – this is your court. Are you caring for a loved one and needing more information about making decisions on their behalf? Again, this is your court. Wanting to get married in South Carolina? Yep, they do that too. Want to get divorced? Well, that’s another court entirely.

In this blog, I hope to provide you with basic information on the myriad of issues that are raised in this area of the law and ensure you know when you need to seek legal assistance.

Dorchester County's New Courthouse

Dorchester County's New Courthouse

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