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South Carolina law affords surviving spouses important rights and benefits.  In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.

What if a Spouse Dies Without a Will?

  • INTESTATE. When an individual dies without a will, intestate succession law will govern.  Under South Carolina law, a statutory framework determines how a decedent’s estate will be distributed.  This is referred to as Intestate Administration.
  • INTESTATE SHARE.  If a spouse dies without a Will, the surviving spouse receives an intestate share.
  • SHARE OF SURVIVING SPOUSE – NO CHILDREN.  If the only survivor is a surviving spouse then the surviving spouse receives the entire estate of the decedent.
  • SHARE OF SURVIVING SPOUSE – CHILDREN.  If there are surviving children regardless of how many, the surviving spouse receives one half of the intestate estate. See Section 62-2-102(1)-(2).

What is an Omitted Spouse?

  • OMITTED SPOUSE.  If a person makes a Will and then marries a person not provided for in the Will, the surviving spouse is called an omitted spouse.  Under South Carolina law, an omitted spouse is entitled to take a share of the estate as if the decedent died intestate unless:
    >  It appears from the will that the omission was intentional; or,
    >  The testator provided for the spouse by transfer outside the will with the intention that the transfer be in lieu of a testamentary transfer
  • TIME-PERIOD TO CLAIM: The surviving spouse may claim a share, if omitted under Section 62-2-301, within the later of:
    >  Eight months after the date of death;
    >  Six months after the informal or formal probate of the decedent’s will; or,
    >  Thirty days after the omitted spouse is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of decedent’s will.

Elective Share or Election Against a Will

  • ELECTIVE SHARE. Under South Carolina law, a surviving spouse has a right to share in a decedent’s estate.  In essence, a surviving spouse’s Right of Election renders it impossible to disinherit a spouse. Section 62-2-201 provides that a surviving spouse has the right to override the Will’s terms and receive one-third of the “probate estate.”  Under this statutory framework, the probate estate means the decedent’s property passing under the decedent’s will plus the decedent’s property passing by intestacy, reduced by funeral and administration expenses and enforceable claims. Importantly, if a revocable trust is found to be illusory, the trust’s assets are included in the settlor’s probate estate for purposes of calculating the surviving spouse’s elective share. Section 62-7-401(c).  The calculation of the share is reduced, however, by anything the surviving spouse did receive (for example, the marital home).
  • DEADLINE FOR FILING FOR THE ELECTIVE SHARE.  The surviving spouse may claim a share, within the later of:
    >  Eight months after the date of death;
    >  Six months after the informal or formal probate of the decedent’s will; or,
    >  Thirty days after the omitted spouse is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of decedent’s will.
  • The share is not automatic; the surviving spouse must take action. It is important, however, to act as quickly as possible to avoid any pitfalls that may result from a failure to make such an election.

Homestead

  • HOMESTEAD RIGHTS. The surviving spouse of a qualified Homestead recipient may receive this benefit as a surviving spouse. A qualified Homestead recipient must hold legal title to the home that is their legal residence and be:
    >  age 65 on or before December 31, preceding the tax year in which the exemption is claimed;
    >  totally and permanently disabled; or,
    >  legally blind.
    If the above conditions are met, and “the surviving spouse acquires complete fee simple title or a life estate to the dwelling place within nine months after the death of the decedent, the dwelling place is exempt from real property taxes to the same extent and obtained in accordance with the same procedures as are provided for in this section for an exemption from real property taxes, so long as the spouse remains unmarried and the dwelling place is utilized as the permanent home and legal residence of the spouse.” Section 12-37-250(D).

Exempt Property
Pursuant to Section 62-2-401, the surviving spouse is afforded important property rights and exemptions under South Carolina Law.  Specifically, the law provides that certain property may be considered exempt property, thereby passing automatically to a spouse regardless of intestate succession laws or the terms and provisions of a will.  In fact, South Carolina amended the personal property exemption in January of 2014 so that up to $25,000 worth of property may be exempt.  The surviving spouse of a decedent “is entitled from the estate to a value not exceeding twenty-five thousand dollars in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects.” Section 62-2-401

Survival by 120 Hours
For the purposes of intestate succession, homestead allowance, and exempt property, the surviving spouse must survive the decedent by one hundred twenty hours.  A surviving spouse who fails to survive the decedent by one hundred twenty hours will be deemed to have predeceased the decedent.

Social Security Death Benefit

  • SOCIAL SECURITY DEATH BENEFIT.  Applying for a Social Security lump sum death benefit (currently $255) must be filed within 2 years of the date of death.
  • SOCIAL SECURITY BENEFITS FOR A SURVIVING SPOUSE.  It is also important to ensure you receive any and all payments you may be entitled to as a surviving spouse from Social Security.

Requirement to File a Known Will
Pursuant to Section 62-2-901, after the death of a testator, a person having custody of a will of the testator shall deliver such will, within thirty days of actual notice or knowledge of the testator’s death to the judge of the probate court in that jurisdiction.

What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?

  • Some probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation.

Contact the probate lawyers of Clark Skatoff for a no-obligation consultation at (561) 842-4868.

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