PROVENCE MESSERVY I ATTORNEYS FOR LIFE
  • Probate
    • Conservatorships & Guardianships
    • Estate Planning
    • Wills, Trusts, & Estate Administration
    • Probate Litigation
    • SC Probate Lawyer Blog
    • Probate FAQs
  • Family Law
    • Separation / Divorce
    • Child Custody & Support
    • Alimony
    • Property Division
  • Criminal Law
  • Civil
    • Personal Injury
    • Wrongful Death
    • Probate Litigation
  • Mediation
  • About
    • Contact Us >
      • Schedule an Appointment
      • Make A Payment
      • APPOINTMENT FORMS
      • FAQs
    • Customer Reviews
    • Summerville
    • Charleston, SC (Daniel Island)
    • Meet the Team >
      • Tiffany Provence
      • Jim Messervy
      • David Causey
      • Virginia Spencer
      • Maureen Strusky
      • Cortney Ricker
      • Gail Elmore
      • Truc Tran
      • Scott Riddell
      • JOIN THE TEAM
    • SC Probate Lawyer Blog
    • News & Resources
    • Current Clients
  • Probate
    • Conservatorships & Guardianships
    • Estate Planning
    • Wills, Trusts, & Estate Administration
    • Probate Litigation
    • SC Probate Lawyer Blog
    • Probate FAQs
  • Family Law
    • Separation / Divorce
    • Child Custody & Support
    • Alimony
    • Property Division
  • Criminal Law
  • Civil
    • Personal Injury
    • Wrongful Death
    • Probate Litigation
  • Mediation
  • About
    • Contact Us >
      • Schedule an Appointment
      • Make A Payment
      • APPOINTMENT FORMS
      • FAQs
    • Customer Reviews
    • Summerville
    • Charleston, SC (Daniel Island)
    • Meet the Team >
      • Tiffany Provence
      • Jim Messervy
      • David Causey
      • Virginia Spencer
      • Maureen Strusky
      • Cortney Ricker
      • Gail Elmore
      • Truc Tran
      • Scott Riddell
      • JOIN THE TEAM
    • SC Probate Lawyer Blog
    • News & Resources
    • Current Clients
Call/Text Now (843) 871-9500
Charleston Summerville

SC Probate Lawyer Blog

Can My Spouse Disinherit Me?

2/28/2014

0 Comments

 
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.

Archived Comments

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
Linda,
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.
0 Comments



Leave a Reply.

    Author

    This blog is authored by the probate law team at Provence Messervy which includes Tiffany Provence, David Causey and Virginia Spencer. 

    Categories

    All
    120 Hour Rule
    24 Wait Period
    Abandonment
    Accounting
    Administrator
    Adoption
    Adultery
    Advanced Estate Issues
    Alzheimer's
    Aunts
    Avoiding Probate
    Bank Accounts
    Banking
    Basis Step Up
    Best Life Insurance Policies
    Burden Of Proof
    Capacity To Make A Will
    Car Title
    Children
    Common Law
    Common Law Marriage
    Conservators
    Conservatorship
    Court Forms
    CPA
    Creditors
    Death
    Death Certificate
    Decedent
    Deed
    Dementia
    Department Of Motor Vehicles
    Devisees
    Disinherit
    Disinherited Children
    Disinherited Spouse
    Divorce
    DMV
    Domestic Law
    Domicile
    Dorchester County Courthouse
    Dorchester County Probate Court
    Durable Power Of Attorney
    Duty To Collect Assets
    Duty To Inform
    Duty To Pay Creditors
    Election
    Elective Share
    Escheat
    Estate
    Estate Debts
    Estate Heirs
    Estate Planning
    Estate Planning Tips
    Estate Tax
    Estate Taxes
    Executor
    Exempt Property
    Extensions
    Family Court
    Family Law
    Fiduciary
    Finding An Attorney
    Form 305PC
    Form 350PC
    Form 435ES
    Formal Probate
    Funeral Bill
    General Power Of Attorney
    Gift Tax
    Grandparents
    Guardians
    Guardianship
    Guest Post
    Guide To Life Insurance
    Half-Siblings
    HCPOA
    Health Care
    Health Care Power Of Attorney
    Heirs
    Illegitimate Children
    Incapacity
    Incapacity Issues
    Informal Probate
    Information To Heirs And Devisees
    Inheritance
    Inheritance Tax
    Intestacy
    Intestate Share
    Introduction
    Inventory And Appraisement
    IRS
    Issue
    Joint Accounts
    Joint Property
    Joint Tenancy With Right Of Survivorship
    Joint With Rights Of Survivorship
    Last Will And Testament
    Legal Capacity
    Life Estate
    Life Insurance
    Litigation
    Marriage
    Marriage License
    Mediation
    Military
    Minors
    Neices
    Nephews
    Next Of Kin
    Non-Probate Asset
    Omitted Spouse
    Paternity
    Payable On Death
    Personal Injury
    Personal Property
    Personal Representative
    Personal Representative's Duties
    Petition
    Policies
    Postnuptial
    Power Of Attorney
    P.R.
    Prenuptial
    Probate
    Probate 101
    Probate Code
    Probate Court
    Probate Forms
    Probate Judge
    Provence Messervy
    Publication
    Qualifications
    Real Property
    Real Property Issues
    Removal
    Residence
    Residency
    Resolutions
    Restraint
    Retirement Accounts
    S.C. Code Of Laws: Title 62
    Senior Citizen's Handbook
    Seniors
    Separation Spouse
    Siblings
    Small Estates
    South Carolina Probate Code
    Spouse
    Summary Administration
    Surviving Spouse
    Taxes
    TCJA
    Tenancy In Common
    Trust
    Uncles
    Uniform Simultaneous Death Act
    Vehicles
    What Is Probate
    Wrongful Death

    Archives

    January 2019
    September 2018
    July 2018
    May 2018
    February 2018
    January 2018
    November 2017
    October 2017
    September 2017
    July 2017
    March 2017
    February 2017
    January 2017
    December 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    June 2015
    March 2015
    January 2015
    August 2014
    June 2014
    April 2014
    March 2014
    February 2014
    January 2014
    November 2013
    October 2013
    September 2013
    May 2013
    January 2013
    June 2012
    July 2011
    May 2011
    March 2011
    February 2011
    November 2010
    October 2010
    September 2010
    August 2010
    July 2010
    June 2010
    May 2010
    April 2010
    March 2010
    February 2010
    January 2010
    December 2009
    November 2009

 Probate  |  Family Law  |  Civil  |  Mediation  |  Contact Us  | SC Probate Lawyer Blog  |  Client Intake Portal | Make A Payment
Picture

Locations

Summerville
​300 N. Cedar St., Suite A
Summerville, South Carolina 29483
​Phone: (843) 871-9500
Charleston
(Daniel Island)
​234 Seven Farms Drive, Suite #112
Charleston, South Carolina 29492
Phone: ​(843) 871-9500
Hours
Monday-Thursday: 9am-5pm​
Friday: 9am-2pm
IMPORTANT LEGAL DISCLAIMERS
All content on this website is intended for general information only. Any information presented on any page on the site or links provided should not be viewed or interpreted as a formal legal consultation from a law firm nor should the formation of a lawyer-client relationship. 
​Copyright © 2019 Provence Messervy, LLC
Site Powered by CoulterWebPros.com