Many people are surprised to learn that South Carolina law actually prohibits your from disinheriting your spouse absent their consent (i.e. a prenuptial agreement). The rights of the spouse to take from the estate will be determined by whether the will was written BEFORE or AFTER the marriage. Here are the two different scenarios.
In the first scenario, the Last Will was executed BEFORE the marriage took place. In this scenario, the law considers you an omitted spouse and presumes that your spouse simply failed to update their will to include you. S.C. Code Section 62-2-301 applies and explains that you are entitled to receive your intestate share in the estate despite what the will might say. Refer to our previous post on intestacy to see what that share would be. It’s important to know that just like most rules, there are exceptions. The omitted spouse rule may not apply if the will appears to have intentionally omitted you or your spouse has otherwise provided for you through other assets.
In the second scenario, the Last Will was executed AFTER the marriage. In this situation, the presumption is that the spouse intentionally left you out of the Last Will. Even if the spouse fully intended to leave their spouse absolutely nothing, S. C. Code Section 62-2-201provides the spouse the ability to claim a one third share of the estate. This share is called an “elective share” as it’s not automatically given to the disinherited spouse, the spouse must elect to receive it.
Here’s an example of how these statutes might both apply to a case. Husband drafts a will prior to his marriage but while engaged to future Wife. In the will he names her as his fiancé and only provides her with a small portion of his estate, leaving the remainder to his children from his first marriage. In this scenario, the Wife should file both an Omitted Spouse Claim (which would entitle her to ½ of the estate) and an Elective Share Claim (which would entitle her to 1/3 of the estate). Should the court hold that Omitted Spouse does not apply because Husband contemplated the marriage at the time the Will was executed, then at the very least she has the right to the Elective Share.
If you are a spouse that has been disinherited, it’s crucial that you contact an attorney immediately. The attorney can give you information on how to file your claim with the court to guarantee you are protected. For example, to secure your elective share, a spouse must file a Petition with the Probate Court and the personal representative within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires. Miss the deadline or fail to file with both parties and you could miss out on your inheritance. Similar time limits apply to omitted spouses. Not understanding how to value the estate’s assets when making your claim, what outside assets may or may not factor in to the estate, and how to properly file your claim could all be costly mistakes!
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.
Olga Decker says:
July 28, 2015 at 10:59 PM
My husband died two years ago and he signed a will in favor of his half sister leaving half of everything to her (I did not know until a month before his death) now she wants me to sell the house so I can give her the money, the house is in my name and my husband but she has the title, can the judge force me to sell the house? I can have a mortgage from the bank and that’s what I want, please advise me what to do, thanks (we did not have children and I am a senior).
Tiffany Provence says:
July 28, 2015 at 11:14 PM
Olga – thanks for commenting. I am unclear how she has the “title.” You can email me privately at Tiffany@ProvenceMesservy.com and provide me with additional information including how the home was titled at the time he passed, if his will left you the remaining 50% of the assets, and how much equity was in the home at the time of his death.
Linda brown says:
December 25, 2016 at 5:19 PM
After the 2014 probate laws can my husband leave me $100.00 and I cannot get my elective share
Tiffany Provence says:
December 27, 2016 at 9:24 PM
Although there were significant changes in the S.C. Probate Code in 2014, this was not one of them. A spouse is still entitled to 1/3 of the estate with an elective share claim. This claim can be reduced (or offset) by certain outside transfers. The only way a $100 devise would stop an elective share claim is if the entire value of the husband’s estate were only $300.