It’s more common than most people realize to have spouses, relatives or other beneficiaries die at the same time or in close proximity to the decedent. Sometimes this occurs due to a common accident (car, plane, etc.) while other times we see spouses simply loose the will to live upon the death of their husband or wife. In these circumstances, Personal Representatives and attorneys must refer to the Uniform Simultaneous Death Act to determine whether or not party passing after the decedent will qualify as a survivor.
January 2014 brought about substantial changes to the S. C. Probate Code. Included in these changes were significant amendments to the Uniform Simultaneous Death Act as found in §62-1-500 through §62-1-508. In order to be qualified as a survivor after January 2014, you must be able to show that the individual outlived the decedent by at least one hundred twenty (120) hours.
A certified copy of a death certificate is considered proof of the fact, place, date and time of death, and the identity of the decedent. If a death certificate has not been issued because the party is missing or presumed dead, a certified or authenticated copy of any record or report of a governmental agency is considered evidence of the status and of the dates, circumstances, and places disclosed by the record or report. If neither of these is available, the fact of death may be established by clear and convincing evidence, including circumstantial evidence. For example, a person who is absent for a continuous period of five years, during which he or she has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
The time of death can become a highly contested matter when it might substantially change the beneficiaries of the estate. A party litigating this issue should understand that although a death certificate may be considered proof of death, another party may contest its accuracy. In order to successfully do so, they too would have to meet the clear and convincing evidence standard to dispute the document.
Now that you’re armed with a better understanding of how to establish time of death, our next post will explain how the January 2014 changes have expanded its relevance to include both intestate (no last will exists) and testate (the decedent left a will) estates.
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.
In our first post on this topic, we discussed how to determine whether or not an heir or devisee survived the decedent. This post will explain how survival alters the administration and distribution in an estate. Effective January 1, 2014, the Uniform Simultaneous Death Act includes both intestate (without a will) and testate (with a will) estates. It can also now alter non-probate transfers as explained below.
In intestate estates, if the party is determined to have survived the required 120 hours after the decedent, then they will take as an heir under the intestate statute. If they have not, they loose the right to take as well as the right to file a claim for exempt property. Application in a testate estate can be a little more complicated as it can cause the spouse’s estate to loose the ability to claim both exempt property and elective share claims. However, in testate estates, the governing instrument (will, trust, etc.) can override the act such that survival by 120 hours is not required when:
In addition to the application of the 120 hour rule to testate estates, it now also alters how real property held jointly with rights of survivorship passes. If it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by the 120 hours, one-half of the property passes as if one had survived by at least one hundred twenty hours and one-half as if the other had survived by at least one hundred twenty hours. In other words, the right of survivorship is essentially changed to a joint tenancy where each parties ownership interest passes through their respective estate.
While the Uniform Simultaneous Death Act has new amendments, they aren’t complicated to an experienced probate attorney. If you have any questions about its application, seek out an attorney for a consultation on its application.
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.