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.
Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. These changes DID NOT abolish common law marriage. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.
Laura Conroy says:
May 24, 2010 at 7:26 PM
I moved here w/an extremely wealthy man. I’ve been here 2 years, we’ve dated for 3 and he promised me I would live by “enviable” standards. He told everyone how he “bought me a house,” then down here said I can stay as long as I want to his family (he’s 20 years my senior). He recently hit me and then left to return to WI for the summer. I need to know what, if any, leg I have to stand on? Thank you
Steven Ennis says:
June 18, 2012 at 9:35 PM
Hi. I have a friend in Federal Prison in Edgefield S.C. He wants to know if it is possible to get a Common Law marriage from Prison in South Carolina? He also wants to know if it is possible to adopt her daughter from prison? Any help would be great. Thank you so much.
July 6, 2012 at 7:20 PM
@ Steve. The common law marriage from prison is a little difficult to answer. Were he and she considered common law prior to his imprisonment or did they find each other after he was already incarcerated? If they met while he has been imprisoned, they cannot be common law married because their is no co-habitation. As far as the adoption of her child, if they were already common law, and the other parent of the child either agrees to it or has already signed his rights over, your friend should not have any issues adopting the child even while he is incarcerated. They only need the appropriate paperwork. If the biological father refuses or has not signed his rights to the child over then they, I would imagine, will have a fairly large fight on their hands. I hope this helps.
July 6, 2012 at 7:30 PM
@ Laura. I’m sorry to hear about his actions towards you and any pain you have suffered. Exactly what you can do about this depends on your common law status. I hope you were smart enough to file a police report, have pictures taken, or go to the hospital for a physicians report. If you did do one of these things you can sue him for the medical bills – past, present and future – from the trauma, pain and suffering and possibly even post traumatic stress if you can be diagnosed by a mental health professional and meet the requirements for the disorder. If you are common law married, you can also file for divorce, request to be awarded one half of his assets and alimony to keep you in the lifestyle you have become accustomed to. If you are not common law, please know that he can have you evicted from the home you are occupying, but he has to give you 30 days written notice before he can expect the dwelling to be unoccupied.
July 18, 2012 at 10:01 PM
I have lived with the same man for seven years, the first 2 years in Florida, the last five in South Carolina. We are both disabled and collecting ssd and ssi, he gets SSD and I get SSI, dIf we have a common law marriage do I have any say on how the money is spent? He is manic depressive, bi polar and the last three months he has been very very manic and spending money like he is rich. I know that he needs to have a representative payee, but I son’t know how to go about that process and can’t afford an attorney.
ANY IDEAS OUT THERE?
August 7, 2012 at 4:10 PM
I have lived with the same guy for 15 years. We have two kids, we have decided to call it quits. The problem is….. we have been filing our taxes as a married couple. We have decided on everything bill wise. What do we need to do now? Can I still get him in Adultery? Can we do an Online divorce? Please help! I want the cheapest and fastest way!
Debra Parkerson says:
August 8, 2012 at 12:12 AM
Dated man a year. Moved in with him, 9 months later gave up working at his request in order to travel with him on his business trips, promised marriage and health insurance, which I gave up. Got engaged a little over a year layer (New Years 2011). He bought a house Jan. 2012 which he stated was for me, spoke with realtor about how to get insurace on house so in the event of his death it is paid for and mine. He never obtained this insurance. He never obtained medical ins for me. We were never married. We live in S.C. About a year ago he purchased a vehicle for me, though in his name for financing. He told & showed several people the truck he bought for me. He told everyone about the house We bought, We were together at closing, the keys were handed to me. I also did inspection & walk-thru. He pays my doc & meds out of pocket (Fibromyalgia). He gave me a bank card & pin # to use. My name is not on account but I sign charges with his last name. He is an alcoholic. During the course of relationship he’s controlling, made threats, cheated & consistently told lies (even when caught red handed). He’s threatened to call police twice when I was out running errands if I did not return home with his truck & bank card. He has told me to get the F out of his house numerous times but whenever I attempted, stopped me, apologized & begged me to stay. This past Saturday night after drinking 14 hrs straight, again kicked me out. While I was proceeding to pack e, he threatened my son’s life who in return said bring it on.
Debra Parkerson says:
August 8, 2012 at 12:39 AM
Continued….while I proceeded to pack, my son (28) stood near for protection. Fiance threatened to fight him, the threatened shooting him. My son said bring it on, I can handle you. I told him to stop. I got my bag, we left. Fiance past out in chair. Next morning a friend witnessed locksmith there. My son met with police to gain access to some clothing. He was informed locks could not be changed and proper eviction notice would need to be served. Fiance told officer he did it because my son threatened him. Police said okay. My son informed he only offered to take him up on his threat, police asked if he wanted to press charges. My son said not right now, my mother is already an emotional wreck from this man.
I have no job, income, need medical treatment for my condition that has gotten extremely worse due to the stress. I have no assets, he has the vehicle intended to be mine, he cut my phone off (not the first time), I have no family other than my son who does not have the means to help me. I’m having severe anxiety, can’t eat or sleep, severely depressed, no self-esteem. I believe I am suffering from PTSD from the works of an artificial man (as not to put a label).
I am dealing with someone who does not play fair. I am trying to avoid my son having any unfair charges brought on him. This person works close to law enforcement & believes they are above the law. I am desperate for help and to know my rights. I cannot afford representation and my mental state so shattered, it took a couple of hours to form this letter. In SC what can I do, where can I go. What are my rights? And I need to move quickly as I said previously, this person does not play fair…..as in no remorse……borderline legal/ethical. Please help.
Tiffany Provence says:
August 13, 2012 at 2:07 PM
First, I am assuming you live in SC. If that is the case, unfortunately by filing taxes as married you are now legally married and must go through a divorce procedure just like everyone else. As a former domestic attorney, I am not aware of an “online” divorce. In SC, every divorce must have grounds (adultery is certainly one of them) and require at least one court appearance. I highly recommend the following website for information on handling your own divorce:
Tiffany Provence says:
August 13, 2012 at 2:14 PM
Unfortunately I don’t believe this is a Common Law marriage issue as none of the facts you presented include any evidence of an intent to be married. Furthermore, unless you have some form of written agreement or contract with regards to his promises, they are likely not enforceable. In South Carolina, you would not have rights to continued medical coverage or income unless you were legally married. I would suggest consulting an attorney who specializes in domestic partnerships and or verbal contracts for a consultation.
Best wishes – Tiffany Provence
October 16, 2012 at 9:44 AM
Hi, I am in the middle of waiting to hear from Social Security, to see if they recognize my common law marriage. I am trying to find answers so I can prepare my self if they come back and tell me my husband and I was not marred.
My husband and I lived together 15 years, the last 7 was in South Carolina. We told all our friends and people around us we were marred. We wanted to get marred, we even tried, we got and signed the paperwork, but we were told we needed a witness and the only person my husband wanted to stand up for us did not have the ID needed to do so.
We have two children together 6 and 9. We tried to buy a house together and I have all the paperwork on this, but at the end they made me take my name off as we did not have a marriage license, the house he now owns is in Fl. This is where things went bad. We moved to Fl in Aug. my husband told me not to worry about the house, as we would be getting marred in Fl at the end of Oct. due to our daughters’ birthday at the beginning of Oct. and have a marriage license so my name could be put on the house. Know big deal, I trusted us and I knew he loved me and our kids. At the beginning of Sep, he passed away. Now I am in shock I have children asking why all the time. We live in this new place where we know no-one, and I am waiting to find out if someone that doesn’t even know us says we were marred. We live together, we told people we were marred, we wanted to get the marriage license. I don’t think we filed taxes together, I did not work he did his own taxes. We did not have a joint banking account; I have his card and number, and bills are in his name as he paid the bills. I did use his last name with people around us and the schools and things like that, but for things that wanted my ID I did not use his last name, as I did not know how to change my ID. What do you think?
December 26, 2012 at 6:28 PM
Living (always) in SC. I have been with a certain man off and on for 9 yrs. We’ll call him “Yikes!” It has been the classic domestic abuse relationship. Police/Sheriffs Deputies called, papers and pictures taken at various times during the 9 years. I would move out when it would get dangerously bad (like guns drawn) and go to a safe house. But like cocaine to a addict, I would go back to him eventually. I loved him; thought I could change him – not! I tried to move on and date at other times. On those 2 occasions he threatened those guys and the relationships came to an abrupt end. I moved back in with him about 5 years ago. My drivers license had his address until April of this year. My step-dad, who was concerned for my safety had a rental house that he gave me the keys for and told me to treat it as my own so I would always know I had a safe house to go to. So I did. I moved my belongings into it that had been in storage for 6 years. But I continued to be with him. I would stay at my safe house when things got bad. During all this time we went off and on to couples counseling – 3 times we saw counselors, and once when he had rung my emotional bell so bad I tried to commit suicide, I ended up in the hospital and we went to therapy there as a couple as well. I still am in therapy and have severe PTSD. Another DomAbuse issue arose and I moved back into my save house. But in all these times I continued to have my normal day-to-day items at his house. And I just lived back and forth. Sometimes months, others weeks. We were still together as of end of April of 2012. then I went back to my safe house. In June 2012 I tried to date person #3 and move on. In August he went to #3’s house to intimidate him (since 2 months of harassing us at my safe house had not had any effect). When he showed up there, guns were drawn. He finally backed down and left. But relationship #3 was basically over after that.
October 14, Yikes! was killed in a horrible car wreck. It has been a roller coaster of emotions I have experienced at this. I was back staying at his house again up to 5 days after his death at which time I left to go to work and his sister changed the locks on his house and I could not get back in. I had slowly been moving some of my stuff back over to my safe house during those 5 days, not knowing anything about common law marriage. but I do still have some things there.
My question I guess is do I have a case of being common law married? We have at least 6 yrs work of police files on record. Many people thought we were married a sent condolences on the death of my husband. My driver’s license was for his address for at least 5 yrs until April of this year.
we went to court 2 times and had I called the law the 3rd time SC has a “3 strikes you out” law and he would have gone to prison. I took beatings and verbal abuse and guns being pulled (and yes I was a fool) because his mother (who I just loved) would not have had anyone to take care of her needs if he were in prison. Now that he is dead, his Mother has turned on me, – his out of town sister and a cousin are that source (no one in his family has ever known of the abuse through the years). I think sister & cousin are fearful there may be a case of common law marriage…. hmmmm? So now they have legally banned me from the property.
Do I have any recourse? Do I have any common law benefits? Since I suffered so much at his hands (to spare his mother) and continue to see a therapist for PTSD do I have any grounds to sue his estate in any manner?
Through it all, I always put his mother’s welfare before my own; was there for both him and his mother & (now deceased) dad when they were ill and needed to go to the hospital or needed assistance in any way. Yikes! health was not good either and was getting worse from lifelong diabetes. Sister was miles away in Kentucky and would not even come home when her dad lay dying in the hospital. She never even asked how Yikes! died!
I would have left well enough alone, except their decision to legally ban me from his property. That was a slap in the face considering all I had been though, and all I had done to support his family when they needed assistance in their ailing years.
What, if any, is my recourse?
January 26, 2013 at 2:58 AM
I live in a state in which common law marriage is not an accepted practice, however, my state does recognize common law marriage from states where it is legal. Since there is no time requirement on common law marriages in South Carolina, could I theoretically take a short vacation with my fiance to South Carolina with the intention of entering into a common law marriage?
Tiffany Provence says:
January 27, 2013 at 11:49 PM
Although technically this could be done, I would HIGHLY recommend that you not use this as a way to create a valid marriage. Issues quickly arise in proof of the marriage since one element is “holding yourself out” publicly as husband and wife. This would have to be done in South Carolina to create the marriage here. If you and your fiance are here on a vacation, it will be nearly impossible to later find the people in South Carolina that knew you well enough to testify to this fact. And the cost of proving this type of union in court is so much more expensive than the price of a marriage license that it’s hard to understand going through such hassle and potential legal pitfalls. If there is a reason that you feel you can’t go through with a marriage by license then I might form a different opinion. If you need more information, please don’t hesitate to email me through our website at http://www.ProvenceMesservy.com.
February 10, 2013 at 9:30 AM
I am on the internet attempting to find some information on behalf of my 26 year old daughter.
She and her childhood boyfriend began living together in 2006. Except for a few rough spots, they continuously resided together. Although they did not purchase property, they leased residences; had two children together (now ages 4 and 2); my daughter used his last name; filed married/joint federal and state income taxes and she is listed as beneficiary on his life insurance.
They had plans to ceremonially wed last September. She has a wedding dress with the tag and receipt still; sample of the invitation we were going to do ourselves; cake topper, etc. However, they ran into a financial snag and postponed.
The problem is they had a huge fight, in December, and believe it or not, out of spite he married someone else in an impromptu trip to the courthouse.
Second problem is he passed away two days ago.
When he married this other gal, he immediately realized there could be legal problems and also realized he’d made a mistake otherwise. He begged forgiveness of my daughter and the two of them starting trying to see if an annulment was necessary. Again, they filed joint/married for their 2012 taxes in January.
(Name Withheld) was 26 when he passed and an autopsy was done. The situation is really a mess. We have asked the coroner to not release his body because this other gal has an actual marriage certificate and my daughter has to somehow prove their common law status.
She has documents where she used his last name; mail that they both received at the same address; the wedding dress receipt ; the joint tax returns; and copy of insurance form naming her as beneficiary.
His body needs to be released for burial “like now.” Does my daughter appear to have the evidence needed to establish common law status? And, must we obtain an attorney to handle this or do you think she can handle this on her own? And, finally, do you feel the court would be able to hear this on an emergency basis so burial arrangements can be made?
Thank you so much for your advice!
Tiffany Provence says:
February 11, 2013 at 11:57 AM
Unfortunately your daughter will have a very difficult time handling this alone. She needs competent legal counsel – and she needs to retain someone quickly! It sounds from the facts that she has a case for common law marriage but more information will be needed by an attorney to truly evaluate her chances. I am in the midst of a trial but my co-author and associate, David Causey, is open for consults should she desire one. He can be reached at 843-871-9500. Best of luck to her as she navigates this mess!
February 14, 2013 at 11:14 PM
Thank you for your response. I just now saw it , but she did speak to a counselor here, in Lexington County. (Name Withheld) is finally being put to rest tomorrow, but not without “the other” making the past week absolutely miserable… a smear campaign on social media, harassing phone calls, and refusing to allow my grandchildren, and their mother, to attend family visitation and funeral tomorrow. In fact, the obit was worded as if “the other” is the mother of my grands. It is a mess. And, thank you again for advising legal counsel!
February 27, 2013 at 11:57 AM
Hi there. I am trying to figure out my parental rights as an unwed father. I have two children with a woman & after 9 years together, we are separating. My name is on both birth certificates. My income is higher than hers. I would like full custody but I know that in SC, mothers tend to receive more rights in an unwed situation. What are my options? This is an exhausting relationship & I need out, but I have to put my girls first.
Another concern of mine is that she threatens to take the girls to her home state, Alabama, if I leave her. Can she legally do this? If she does move to another state, what is the custody agreement?! How will I be able to see my girls?
Any advice would be MUCH appreciated. Thank you.
Tiffany Provence says:
March 4, 2013 at 1:06 PM
Unfortunately this is more of a family law matter as opposed to a Probate Issue. If you would like to email me privately at Tiffany@ProvenceMesservy.com I am happy to make some recommendations to you for attorneys that handle these matters.
Best wishes – Tiffany
Joyce Schools says:
March 12, 2013 at 12:45 PM
Is clm legal with all benefits of public marriage? Did I understand that both parties must agree on clm? We have openly live together for 5 years, if he were to die, what rights would I have?
Tiffany Provence says:
March 12, 2013 at 3:53 PM
A properly proven common law marriage carries with it the same benefits and risks of a “regular” marriage. That being said, just living together is not enough. You must show that both of you “held yourself out” as husband and wife. And, it’s never a great idea to wait until one party is deceased to try and establish a common law marriage.
phyllis cobian says:
April 21, 2013 at 9:12 PM
My husband and I have lived together for 10 years. In 2006 we moved to s.c. where we bought a house. My credit was bad therefore my name was not on the house. I was a housewife and my husband was an over the road truck driver. He has raised my son from the time that he was 2 years okd. In 2011 of oct, we seperated. In nov 2011 he passed away. Since then I have been fighting my ex sister in law and ex step daughter. They ran to the courts and behind my back to an oath that she was the only living relative. Mind you my husband and I have alway’s filed taxes together as married with my son. We were in tthe process of filing for divorce when he died. In nov of 2012 we finally made t to court after I have paid the house mortgage for the entire yr, paid the taxes for the yr. They did nothing, no maintenance nothing. We made it to court and even had the united states bankruptcy attorney there as a witness to us being married. To my surprise the Judge was very good friends with their attorney. It took 3 months to finally get a ruling,the same day I got theruling was the day they came and picked up my car for repossion. The Judged ruled that she was not convinced that we were married. She was asked to reconsider her ruking and she denied it. We are now in the process of an appeal. My problem is that the appeal is in the same courthouse. What do you think the chances are of getting a fair hearing? And if the ruling is the same how can I at least get back my belongings from the house, and the money that I paid out?
holly walker says:
July 31, 2013 at 9:26 PM
My partner and I want to start a common law marriage. We live together and have a joint bank account and a business. My question is: I want to change my name on my SC driver’s license, to his last name. What will the SCDMV take, what kind of document, so that I can effect the change? If SC recognizes common law marriage, certainly the SCDMV should as well. thanks!
Tiffany Provence says:
August 26, 2013 at 6:02 PM
Holly – If you intend to be common law married, I have two suggestions. The first is to simply get a marriage license and have a notary perform the ceremony. This greatly reduces the hassle, risk of future litigation and makes it so much easier to effectuate a name change. If, for whatever reason, you choose not to do that, you can file an affidavit confirming your common law marriage with the court; however, I have never seen this done cheaper than the current cost of a marriage license. The SCDMV should accept either the license or the affidavit.
Andrew Lingle says:
October 7, 2013 at 10:42 PM
how can my wife get her I.D. changed to reflect my last name if we are common law married and living in a state that does not allow common law marriages? the state recongnizes common law marriages of people that were common law married outside the state and move into the state and that is our situation but she never got an I.D. and wants to get her I.D. in her married (common law married) name which is my last name…how can we go about that? Same with social security how do we deal with social security and other government agencies as far as getting her name to be legally my last name?
Tiffany Provence says:
October 7, 2013 at 10:49 PM
As I’ve stated before, the BEST solution to this problem is to simply get a marriage license and get married. If, for whatever reason, that’s NOT an option, then each state has a various procedure you can take to “register” your common law marriage. What state are you claiming to be common law married in? If SC, there is a procedure for filing an affidavit in the court to prove the common law marriage. Again, hiring an attorney to do so in order for this marriage to be recognized out of state is likely much more expensive than just obtaining a marriage license in your current state of residence. Feel free to email us (firstname.lastname@example.org) for greater details or a quote for our services if you need SC specific advice.
cathy stokely says:
April 11, 2016 at 2:51 AM
My husband and I have been living together since 1997 and have had accounts together since we moved in with each other and filed taxes as married couple for 3 years now. What I am wanting to know is what I read is common law is no longer recognized in SC, what does this mean when it comes to the federal government am I in trouble? I had no idea that is change has been made in the books. What if we decided to go ahead and get married legally now? Worried!
Tiffany Provence says:
April 11, 2016 at 2:45 PM
Can you please point me to the source that is claiming that common law marriage is no longer valid in South Carolina. We work daily in this area of the law and although we regularly hear this “rumor” we have never seen evidence of legislative change. Since you have filed taxes together as husband and wife, it would be wise to follow that up with an affidavit of intent to be married. This can then be filed with the court to solidify your marriage.
Also, please note that even if the SC law were to change, it is highly likely that those who entered in to a common law marriage BEFORE the law change would be grandfathered in sop that their marriage would still be legally binding.
I hope this helps calm your worries. If not, we’re happy to schedule a consult with one of our attorneys.
Debra Jones says:
September 24, 2016 at 4:55 PM
My husband and I recited our marriage vows to each other at home on tape in 2006 in SC. The only reason we did not obtain a marriage license was due to outstanding debts due to triple bypass surgery following his heart attack prior to meeting me and he didn’t have medical insurance yet after starting a new job. He was disabled and unable to work 6 months after we met in 2005, and received social security disability. We had separate checking accounts, I filed taxes as single, nothing together in our names, but publicly we referred to each other as husband and wife, and wore matching wedding bands. My husband passed away unexpectantly 2 weeks ago. We both had wills, him naming me as beneficiary, to his life insurance policy also. I have been told by friends that I need to complete a form and submit to probate court to settle his estate. Please confirm. Also, please advise if I can collect any monies that I’m unaware of (like part of his social security benefits), and once I retire, can I collect off of his social security?
Tiffany Provence says:
September 26, 2016 at 10:20 PM
In the state of South Carolina, if one of the spouses is deceased, a petition to prove the common law marriage must be brought before you can have priority to handle his estate or claim any benefits as spouse. From your explanation, it sounds as if you can meet the burden of proving the marriage but doing so without an attorney is difficult. Our attorneys will offer a consult to explain the process and help you determine if it’s worth taking this action. If you don’t live in the area, this can be handled by phone. David Causey in our office is the common law marriage contact.
Debra Jones says:
September 28, 2016 at 10:02 AM
Thank you Tiffany. I will give him a call since I’m not local.
April 22, 2017 at 1:22 PM
Have a friend who’s brother lived in SC. The brother just died. He had a girl living with him with an infant. No documents show he is the father. He and the girl were mixed up heavily into drugs. When my friend arrived, the girl knew all about “common law marriage”. She and her friends were in the process of cleaning out his house. His bank card was taken and account cleaned out. The cops were called, she did leave and was told everything must be put back in 24hrs or charges will be filed. The bank account was frozen. Okay. Reading about the crazy SC law, if SHE claims they had intent to get married, what can be done? His brother is not around to refute it. My friend knew nothing about any intent to marriage but if SHE produces friends that say they knew of such intent, how can the court decide? This is pressing because my friend cares for his brother’s children whom he adandibed. We are hoping to get them at the very least survivors insurance from SS–and not have it go to this girl based on her claim of common law. I understand utilities and such in the same name lend to proof, but it seems like it comes down to he said/she said in court. Please tell us all one has to do is not claim a late night promise that can’t be substantiated to get an estate.
Tiffany Provence says:
April 22, 2017 at 9:39 PM
“Intent” to be married in the future is not enough. The purported spouse must show that they held each other out as husband and wife. Testimony of her friends alone isn’t sufficient. They must show evidence which includes actions such as wearing wedding rings, calling each other husband and wife, listing one another on insurance as “spouse,” filing joint tax returns, etc. The decedent’s next of kin (his parents – if living) need to contact an attorney as soon as possible to represent the estate and handle this issue. If someone brings an Petition to Prove Common Law Marriage in the Probate Court, the defense needs to be handled by an attorney with experience in this area! Please let us know if we can help.
Hope Dansby says:
February 20, 2018 at 10:24 AM
I am looking for an affidavit for others to sign stating that my brother and his ex proclaimed that they were husband and wife ,, she has left with their 2 yr old and married another man after 1 month .. My brother and his ex were together and lived together for 7 years . bank accounts, insurance, and his name listed as the step dad on her other childrens school documents .. any help would be appreciated .
thank you,, a concerned sister and aunt …
Tiffany Provence says:
February 22, 2018 at 1:45 PM
Hope – Thanks for reading our blog. I’m not actually sure what you are asking for. In SC, a couple can file a joint affidavit acknowledging their common law marriage in the court; however, it’s not possible for others to do that for him. If your brother legitimately believes they were married, he needs to seek the consult of a divorce attorney with a background in common law marriage. If they were in fact living as husband and wife, he marriage to the new gentleman is void so she has an equal interest in resolving this. Autumn Hazy is a divorce attorney in our office who can help him. She offers consults at a reduced rate so that people can get their questions answered before deciding what to do. If you have further questions, please email us as we don’t check the blog daily. Thank you.
As explained in a previous post, an estate must be opened in the county of domicile of the decedent. While people may have many residences, each of us only has one domicile.
The court will determine the domicile of the decedent by looking at the following:
In the majority of cases, determining domicile is not a problem. Even those who are fortunate enough to have vacation homes or live in more than one state usually have documentation that establishes where they considered their primary residence, or domicile to be.
This does, however become a big issue in two situations that are more common than many might realize:
INCAPACITY – If someone passes away after living in a nursing home, there is often confusion about in which county the estate should be opened. Is it the county where they originally lived or the county where they were in a long term care facility? The answer to that questions is determined by the decedent’s intent when they moved. For example, if someone is diagnosed with early Alzheimer’s and decides, on their own, to move into an assisted living facility where they later pass away then it is likely that they changed their domicile from the county where they originally resided to the county where they passed away at the time of the move. In a second example, if an elderly person becomes incapacitated due to dementia or Alzheimer’s and they are placed in a care facility with participating in the decision, then it is likely that their domicile does not change. The issue her is intent. Someone must have the intent to change their domicile and therefore anyone who becomes incapacitated for any reason is considered to be domiciled in the county where they resided at the time the incapacity occurred. An example of this rule can be found in the ruling of
MILITARY – Military personnel also provide a unique domicile issue. Again, the court will focus on intent. The general rule is that a member of the military, regardless of where they are stationed, is considered domiciled in the county where they resided at the time they enlisted. This rule is easily overcome by actions such as purchasing a home away from the military base or marrying someone in a location where they are stationed and expressing an intent for that location to be their “home.”
The issue of where the estate is opened is important to the court because it is their responsibility to ensure that they have jurisdiction over the estate. If an estate is opened in the wrong county, creditor’s could claim they did not have proper notice and interested parties may unknowingly open a second estate in the other county. If everyone applies the rules of domicile correctly, then all parties will know where to look when trying to find someone’s estate.
Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.