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

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

No related posts.