The first question that must be asked is whether or not the decedent had a valid will? If so, that document will control who receives property from his or her estate. Even if you are the next of kin, a valid will can remove your rights to receive and give the property to someone else instead. The only party that has the right to receive, even if disinherited in a will, is the surviving spouse. We will cover that right in a future post on the elective share. If the will leaves you nothing and you are not the surviving spouse, you will only receive if you or another interested party proves the will to be invalid.

If there is no will, property passes to the intestate heirs through the law as determined by the S.C. Code in  §62-2-102 and §62-2-103. The statues read as follows:

SECTION 62-2-102. Share of the spouse.

The intestate share of the surviving spouse is:

(1) if there is no surviving issue (children) of the decedent, the entire intestate estate;

(2) if there are surviving issue (children), one-half of the intestate estate.

So, this essentially means that if you were married to the decedent and the decedent had NO children, you will receive 100% of his or her estate. Remember, this does not mean that he/she had no children with YOU, this means the decedent had no children at all, with any person, whether biological or adopted. While this statue clearly establishes the rights of the spouse, the following statute, in relevant part, will be of interest to anyone else.

SECTION 62-2-103. Share of heirs other than surviving spouse.

The part of the intestate estate not passing to the surviving spouse under Section 62-2-102, or the entire estate if there is no surviving spouse, passes as follows:

(1) to the issue (children) of the decedent: if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation;

Although only a small portion of the statues, this covers the majority of heirs. By combining §62-2-102 and §62-2-103, you can determine your rights as follows:

SURVIVING SPOUSE AND NO CHILDREN – Surviving spouse will take 100% of the assets of the estate.

SURVIVING SPOUSE WITH CHILDREN – Surviving spouse will take 50% of the assets of the estate. The remaining 50% will be divided equally among the children of the decedent, regardless of whether or not they are also children of the surviving spouse. So, if there are two (2) children, they would each get 25%. If there were five (5) children, they would each get 10%. Remember that to be considered a child for the purposes of this statute, you must be a child of the decedent by birth or adoption. Step-children of the decedent are not treated as children under this section. Furthermore, illegitimate children may have to prove their paternity to receive.

CHILDREN BUT NO SURVIVING SPOUSE – If there is no surviving spouse, the children of the decedent will share equally in the estate such that if there are two (2) children they would each receive 50% for a combined 100% of the estate assets.

An important point to remember is that only the spouse must survive in order to be an heir. If a child of the decedent passes away, their children will stand in their shoes and receive their share by representation. For example, if decedent has a wife and four adult children, one of whom has passed away but left behind a child, the wife will take 50% of the estate assets, each of the living adult children will take their 12.5% and the child of the deceased child (grandchild to the decedent) will take the 12.5% that belonged to his/her parent.

And lastly, before planning how you will spend your share, remember that you only receive after the debts of the estate have been paid or resolved. In today’s economy, there are many estates which are left with very little to pass down.

If the decedent had no surviving spouse, children, or children of children (grandchildren), then move on to Am I An Heir – Part II to see if you might still receive.

Related posts:

1. Am I An Heir? Part II – Decedent had no spouse or children. Now what?

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!

Related posts:

1. Pick Me, Pick Me! Who gets to be the Personal Representative of the estate? (Part I)
2. Choosing a Personal Representative
3. Personal Representative’s Duties: Duty to Inform

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.

Related posts:

1. Who will be the Personal Representative? (Part II)
2. Personal Representative’s Duties: Duty to Inform
3. So how long is this going to take?