South Carolina Code §62-2-301 states in relevant part that if a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will. This means the omitted spouse will receive a minimum of fifty percent (50%) of the estate if the decedent had children or up to one hundred percent (100%) if the decedent didn’t have children. This right should not be confused with the elective share, which applies when the decedent drafted the will after the marriage and intentionally excluded the spouse in whole or in part.

As with every rule of law, there are some exceptions. An omitted spouse is not entitled to this share if it appears from the will that the omission was intentional. An example may be where the will itself states that the decedent does not intend to provide for any future spouse or acknowledges an intent to leave everything to charity regardless of his marital status at the time of death. The omitted spouse may also have a problem if the testator provided for the spouse by transfer outside the will and it can be proven that the transfer was in lieu of a gift in the will. An example includes the deceased spouse providing for the spouse during life but having a valid prenuptial agreement whereby he/she agrees not to make a claim against the decedent’s estate.

Due to South Carolina’s continued acceptance of common law marriage, it is important to note that this right extends to those who successfully prove a common law marriage that was entered into after to the execution of the decedent’s last will. If the evidence indicates that the common law marriage was entered into before the decedent’s last will, then the spouse will be limited to the elective share. A wise attorney when dealing with a common law marriage will plead both omitted spouse and elective share at the same time.

Similar to the elective share, a spouse who was unintentionally omitted from the last will and was not otherwise provided for by a separate transfer should take immediate action. A petition for such share must be filed within eight months after the date of death or within six months after the probate of the decedent’s will, whichever limitation last expires.

Related posts:

1. The Elective Share

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.

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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.

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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?

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