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Spousal Elective Share

The spousal elective share statute in South Carolina provides that the surviving spouse has the right to claim one-third of the estate even it they are completely disinherited in the decedent's last will and testament.

Often, due to unhappy circumstances, someone will want to completely disinherit their spouse. While you can disinherit your children, in South Carolina you cannot completely disinherit your spouse. This is to protect the surviving spouse from being left destitute and a burden on the state. While the right to an elective share is a statutory right, it must be properly and timely claimed or the claim will be barred.

Who is a Surviving Spouse

The probate code provides that in determining whether a person is a surviving spouse, a divorce or annulment is not final until signed by the court and filed in the office of the clerk of court. S.C.Code Ann. § 62-2-802(c). In addition, the supreme court has held "that an action for divorce, being purely personal, terminates on the death of either spouse, and where the action for divorce is commenced, and one of the parties dies thereafter but before the entry of a final decree, the action abates and the jurisdiction of the court to proceed with the action is terminated." Louthian and Merritt, P.A. v. Davis, 272 S.C. 330 (1979).

In Hatchell-Freeman v. Freeman, 532 S.E.2d 299, 340 S.C. 552 (S.C.App. 2000), the husband died three days prior to the signing of the divorce decree. The South Carolina probate court held that because the decedent died three days before the signing of the divorce decree, Hatchell-Freeman and the decedent were still married at his death and she was therefore entitled to her spousal elective share or intestate share of decedent's estate.

COMMON LAW MARRIAGE

South Carolina is one of the few remaining states that recognizes a common law marriage. It is not unusual for the "partner" of the decedent to claim that there was a common law marriage and they are entitled to a share of the estate as a surviving spouse. For a complete discussion of the requirements to prove the existence of a common law marriage see:

Common Law Marriage in South Carolina

Statute of Limitations

The South Carolina Probate Code provides a procedure whereby the surviving spouse of a person domiciled in this state may claim an elective share of one-third of the decedent's probate estate.   Section 62-2-205(a) provides:

The surviving spouse may elect to take his elective share in the probate estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within eight months after the date of death or within six months after the probate of the decedent's will, whichever limitation last expires.

The notice must be given to the court and the personal representative or the claim can be denied. To avoid any disputes, the notice to the PR should be by certified mail.

Williams vs. Williams

A petition for elective share is a formal proceeding and you should consider retaining a South Carolina probate attorney to be sure that you properly present your claim at the hearing.

How is the Spousal Elective Share Determined?

A spouse that is disinherited in the last will and testament can make a claim for a share of one-third of the estate. This amount is determined by the value of the estate, including any revocable trusts, after the valid debts and costs of administration have been paid. This one-third share is not in addition to anything the surviving spouse did receive. For example, if the surviving spouse is left the marital home in the will but this does not equal to one-third of of the estate, then they will receive the one-third minus the value of the home they already received.

Keep in mind that the election to claim one third of the estate only applies in situations where there is a valid will. Where there is no will, the estate is distributed by the law of intestacy.

Elective Share Case Law

Gallagher v. Evert The claim for an Elective Share must be filed with the Probate Court while the surviving spouse is still alive, not by their estate.

Dreher vs. Estate of Dreher A Surviving Spouse is entitled to one third of the Deceased Spouse's Revocable Trust. A revocable trust cannot be used to disinherit a spouse unless the spouse has otherwise been provided for.

Omitted Spouse

There is a different statute that affords a surviving spouse protection when the deceased executed a will prior to the marriage but has failed to update the will. When this happens, the surviving spouse is called an omitted spouse. Under South Carolina law provides that if a spouse fails to provide by will for his or her surviving spouse and they were married after the execution of the will, the omitted spouse shall receive the same share of the estate that they would have received if there had been no will, i. e. intestate succession. The omitted spouse will receive a minimum of half of the estate if the deceased spouse had children or all of the estate if there were no children. See:

§62-2-301 South Carolina Probate Code

It is important not to confuse the omitted spouse statute with the elective share statute since the omitted spouse may be entitled to a greater share of the estate. For an excellent discussion of the South Carolina omitted spouse statute see:

Green ex rel. Estate of Cottrell v. Cottrell ex rel. Estate of Cottrell, 550 S.E.2d 324, 346 S.C. 53 (S.C.App. 2001)

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