In a previous post, we discussed how illegitimacy affects the share of a child in probate. However, in some instances it’s the death of a child that raises a different issue . . . who benefits from the estate of a child? Who is entitled to serve as Personal Representative? Who can bring legal action on behalf of the child’s estate?
Determining the heirs of a young child can be a complex issue in a society of single parent homes, children being raised in foster care and blended families. First, remember that parents of a child will only inherit from the child if the child was not old enough to have a spouse or children of their own. For further information on the basics of when the parents are heirs, see our series on “Am I an Heir?” Part 1 and Part 2. In this post, we’re generally referring to the estate of a young child who has neither spouse nor children and therefore the parents are presumed to be the heirs. Many people may wonder how a young child can even have an estate (especially if they weren’t old enough to own assets) but this usually occurs when a child dies as a result of an accident and the assets in question stem from a lawsuit or insurance that pays to the estate.
South Carolina Code § 62-2-109 governs when a parent-child relationship exists for inheritance purposes. A child born out of wedlock is always the child of the mother. Absent a termination of the mother’s parental rights, the surviving mother of a deceased child is presumed to be an heir of the estate. Fathers; however, can prove more difficult.
The common law in South Carolina for many years provided that the father had no obligation to provide support of an illegitimate child. See McGlohon v. Harlan, 254 S.C. 207, 211, 174 S.E.2d 753, 755 (1970). A child is also the child of the father if: (1) the natural parents participated in a marriage ceremony, even if the attempted marriage is void; or (ii) paternity is established by adjudication. However, S.C. Code Ann. § 62-2-109(2)(ii) contains a wrinkle to paternity by adjudication. In order for the putative father to inherit from or through the child, he must have openly treated the child as his and not refused to support the child. Further, if either or both of the parents’ parental rights have been terminated, they are not eligible to inherit from or through the child.
Often in the case of children, adjudication of paternity occurs in connection with child support or child custody proceedings in family court. A birth certificate containing the signatures of the mother and putative father creates a rebuttable presumption of paternity. S.C. Code Ann. § 63-17-60(A)(6).
However, where the adjudication of paternity is occurring after the death of the child, a finding of paternity will require that the father did not refuse to support the child (this would include the payment of child support), as well as acknowledgement of paternity by the father during the child’s lifetime.
As a note for our legal readers, the burden of proof for these matters, whether the decedent is the putative father or the illegitimate child, is clear and convincing evidence. This can be a difficult standard to meet in the absence of DNA evidence. Frank discussion with clients is important before appearing at your hearing.
In conclusion, if you’re dealing with the death of a child (as a parent or legal counsel), it’s wise to understand the complex issues that can arise if there is a question of paternity, a termination of parental rights, an adoption or a failure to support the child. It’s wise to get a probate attorney involved early that can guide you through these issues.
It’s human nature after the death of someone to be curious as to whether or not you might be an heir to their estate. But, before you quit your day job and rely on living off of an inheritance, you need to know the actual likelihood of you receiving anything at all.
The first question that must be asked is whether or not the decedent had a valid will? If so, that document will control who receives property from his or her estate. Even if you are the next of kin, a valid will can remove your rights to receive and give the property to someone else instead. The only party that has the right to receive, even if disinherited in a will, is the surviving spouse. We will cover that right in a future post on the elective share. If the will leaves you nothing and you are not the surviving spouse, you will only receive if you or another interested party proves the will to be invalid.
If there is no will, property passes to the intestate heirs through the law as determined by the S.C. Code in §62-2-102 and §62-2-103. The statues read as follows:
SECTION 62-2-102. Share of the spouse.
The intestate share of the surviving spouse is:
(1) if there is no surviving issue (children) of the decedent, the entire intestate estate;
(2) if there are surviving issue (children), one-half of the intestate estate.
So, this essentially means that if you were married to the decedent and the decedent had NO children, you will receive 100% of his or her estate. Remember, this does not mean that he/she had no children with YOU, this means the decedent had no children at all, with any person, whether biological or adopted. While this statue clearly establishes the rights of the spouse, the following statute, in relevant part, will be of interest to anyone else.
SECTION 62-2-103. Share of heirs other than surviving spouse.
The part of the intestate estate not passing to the surviving spouse under Section 62-2-102, or the entire estate if there is no surviving spouse, passes as follows:
(1) to the issue (children) of the decedent: if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation;
Although only a small portion of the statues, this covers the majority of heirs. By combining §62-2-102 and §62-2-103, you can determine your rights as follows:
SURVIVING SPOUSE AND NO CHILDREN – Surviving spouse will take 100% of the assets of the estate. This includes those that have proven themselves to be common law spouses under SC law.
SURVIVING SPOUSE WITH CHILDREN – Surviving spouse will take 50% of the assets of the estate. The remaining 50% will be divided equally among the children of the decedent, regardless of whether or not they are also children of the surviving spouse. So, if there are two (2) children, they would each get 25%. If there were five (5) children, they would each get 10%. Remember that to be considered a child for the purposes of this statute, you must be a child of the decedent by birth or adoption. Step-children of the decedent are not treated as children under this section. Furthermore, illegitimate children may have to prove their paternity to receive.
CHILDREN BUT NO SURVIVING SPOUSE – If there is no surviving spouse, the children of the decedent will share equally in the estate such that if there are two (2) children they would each receive 50% for a combined 100% of the estate assets.
An important point to remember is that only the spouse must survive in order to be an heir. If a child of the decedent passes away, their children will stand in their shoes and receive their share by representation. For example, if decedent has a wife and four adult children, one of whom has passed away but left behind a child, the wife will take 50% of the estate assets, each of the living adult children will take their 12.5% and the child of the deceased child (grandchild to the decedent) will take the 12.5% that belonged to his/her parent.
And lastly, before planning how you will spend your share, remember that you only receive after the debts of the estate have been paid or resolved. In today’s economy, there are many estates which are left with very little to pass down.
If the decedent had no surviving spouse, children, or children of children (grandchildren), then move on to Am I An Heir – Part II to see if you might still receive.
Tierney hinde says:
September 20, 2011 at 4:10 PM
How do i find out if im heir to my grandmothers estate as i dont know if she had a will and was told i would recieve estate?
September 14, 2016 at 3:36 AM
I recently inherited 1.5 acre of land in Mannng SC from my father who just passed away. My aunt who has been paying the taxes for the past twenty five years and whom has been living on the property(she has share ofi t also) has demanded that I pay her the taxes she has paid for the past 25 years. I am 48 years old and had no idea of the land until the reading of the will. My question, am I responsible to paying her back the monies for all twenty five years? She made my uncle pay her with interest and want me to do the same. I am at a loss here. Please help.
Tiffany Provence says:
September 19, 2016 at 12:07 PM
There is a lot of information we would need to properly answer this question. How did you inherit the property? When was your father’s estate opened? Did your Aunt file a claim for repayment of the taxes? Were there any agreements between your father and Aunt? Has she enjoyed exclusive use of the property during the entire 25 years? How much are the taxes? In short, she can’t “make you” do anything but she might be able to take legal action to get payment. I would proceed with caution. Many estate attorneys can provide you with a discounted consult to help you better understand your rights but they will need all of this information.
Donna Hughes says:
June 2, 2017 at 2:21 AM
My father passed November, 2016, my stepmother passe May, 2017. Can my stepmother give her daughter, house( which is paid for, they were married 60 yrs.) and all it’s contents, and biological get nothing
Tiffany Provence says:
June 2, 2017 at 9:13 AM
We would love to help answer your questions but unfortunately we need additional information.