If you’re in the midst of a divorce, it’s wise to review your current estate plan (or lack thereof), to understand how you need to prepare. In South Carolina, divorce proceedings often take well over a year to complete due to the requirement that parties without grounds for divorce live separate and apart for more than 12 months. While divorce is awful, death is certainly worse and many of our clients aren’t comfortable having their estate plan in limbo pending their divorce. If you’re in this situation, here are a few tips and things you need to know:
Pre-Nuptial Agreements: Make sure your divorce attorney has a copy of your prenuptial agreement and advises you on how it could come in to play during the pendency of a divorce. In most cases a prenuptial agreement often limits (if not eliminates) an obligation to provide for the other upon death. That being said, a prenup won’t override an existing estate plan that was executed after the marriage when all was well in the relationship. As a rule of thumb, do NOT make the mistake of relying on a prenuptial agreement or South Carolina law to “auto-correct” an estate plan.
Trusts / Wills: If there is a trust/will in place it’s important to review the document to recall specifically what it provides for the soon to be ex-spouse. Many mistakenly assume that during a period of separation, any bequests to the spouse will become null and void. This simply isn’t the case. In fact, there is case law in South Carolina which only terminates rights between spouses during a divorce if they have a fully executed and approved settlement agreement in place which addresses this issue. If this is important to you, make sure your attorney includes that language as soon as possible in your proceedings.
Power of Attorney Documents: While there are laws preventing you from disinheriting someone you are still married to (called the “elective share”), there is no requirement that you keep them as your power of attorney. Most of the time, each spouse has listed the other as agent in his or her powers of attorney to make decisions on critical property and health care. If you wouldn’t want your soon to be ex making these decisions, you need to have your attorney update your documents. If you don’t have these documents in place, it’s time to get them in place to make it clear who is in charge of your decisions if you’re unable to make them on your own.
Take the time during the pendency of your divorce to recall and review all accounts that have a POD (Payable on Death) or Beneficiary designation. It’s quite common that spouses name one another for everything from insurance proceeds to annuity plans. Talk to your attorney before making any changes as certain accounts are likely still a part of the marital assets. Once you’re given approval on what accounts you can control, it’s time to decide who should replace your spouse on these documents and accounts and how that falls in line with your overall estate plan. If your divorce attorney isn’t a qualified estate planner, now would be a good time to get a referral.
Unfortunately, there are certain steps that can only be taken once the divorce is finalized. As mentioned, in South Carolina and in many other states, it’s rather difficult to disinherit your spouse entirely while still married. However, reviewing the items mentioned above and getting a head start on planning for your new life as a single individual will keep you moving in the right direction and make sure there is not an unintended windfall for a soon to be ex-spouse.
Baby boomers beware . . . there’s a new custody battle on the rise and it has nothing to do with family court, divorce or minor children. In fact, the newest custody battle is over YOU and it’s occurring statewide in our Probate Courts.
As many of us age, we simply hope someone will be there to help care for us in our final years.
Do you know who will manage your health and finances if you’re unable to do so?
So, how do we avoid anyone fighting over us in court? Less than one-third (1/3) of our population has executed a Health Care Power of Attorney or General Durable Power of Attorney to name an agent to act in our place. The reasons why vary from person to person but we’ve found for the most part it’s just wishful thinking that we will die peacefully in our sleep without facing the hurdles of aging including dementia and or Alzheimer’s Disease. Statistics; however, tell a different story. One in 3 seniors will die with Alzheimer’s disease or another dementia. One in 8 people over age 65 in the United States has Alzheimer’s disease now, and nearly 50% over age 85 are suffering. In 2014, an estimated 5.2 million people in the United States were living with Alzheimer’s disease. Sobering, isn’t it?
What’s worse is that as a whole, we’re completely unprepared and by the time we realize it (or our family does), it’s often too late because we’ve lost the ability to legally execute these documents. For more information on obtaining these documents, please contact our office for a completely free (no obligation or sales pitch) consultation. And if you’re reading this because you already have a parent in this situation, please make sure to read our other posts on Guardians and Conservators to better understand the Court’s role. Still have questions? Post them here or call/text our office at 843-871-9500. We’d love to hear from you.
Exempt property is property that a surviving spouse can protect from creditors of the estate. By allowing exempt property, the S.C. Code essentially guarantees a spouse that he/she will be able to maintain certain household furniture, automobiles, furnishings, appliances, and personal effects despite the amount of debt owed by the estate. The South Carolina Probate Code §62-2-401 was amended in January of this year to increase the personal property exemption from $5,000 to $25,000 making this a much greater protection. If there is no surviving spouse, minor or dependent children of the decedent are entitled jointly to the same value; however, adult children do not get the same benefit.
There are a few important points to remember if you wish to claim this exemption as a spouse or on behalf of your client.
Many people never create a valid last will and often those that do then forget to update them. Luckily, South Carolina law provides a remedy for spouses who marry and later learn that their husband or wife had a will in place before the marriage that was never updated.
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.
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.
February 4, 2011 at 4:22 PM
Is there any remedy if you are the Common law wife, and more than 8 months has run since death and 6 months since appt. of PR but the Common law wife was never noticed of any proceedings?