In many instances, a married individual will more than adequately provide for their spouse in their estate planning documents. However, there are circumstances in which wills and trust materials do not adequately provide for a spouse. For instance, what if a married individual completely omits a spouse from inheriting his or her assets after death? Or, what if an individual gets divorced but fails to change his or her will? Fortunately, these scenarios are addressed in South Carolina’s Probate Code.
In South Carolina, a surviving spouse of a decedent could be entitled to what is called the “elective share” of a decedent’s estate, unless a valid waiver of elective share exists. A waiver may exist if a surviving spouse has previously waived rights in a prenuptial or postnuptial agreement, or if he or she signs a waiver. Assuming there is no waiver of elective share, a surviving spouse of a decedent who was domiciled in South Carolina is entitled to, and can claim, one-third of the decedent’s probate estate, pursuant to Sections §§ 62-2-201 through 62-2-207 of the South Carolina Code of Laws. Although seemingly simple language, the overall valuation of what is considered the probate estate, and the assets therein, can be tricky and it has its nuisances. For example, South Carolina law states that a revocable trust is illusory for purposes of calculating the elective share and that those trust assets are included in calculating the value of a probate estate. Moreover, to make such a claim, the surviving spouse must file a summons and petition in the Probate Court in the county where the decedent was domiciled within a specified period of time, or they waive their claim. It is important that surviving spouses with possible elective share claims discuss their options with an attorney before proceeding with a claim.
In the case of divorce, a former spouse will not be considered a surviving spouse for purposes of elective share claims. Therefore, even if an individual executed a will while married, and later divorced, the effect of the divorce will be to void any will provisions affecting the former spouse. However, as a general practice, it is always best to execute a new will after getting divorced. It is also worth keeping in mind that if an individual gets remarried, but fails to account for their spouse in their will, that spouse will likely be entitled to claim the elective share, although some exceptions exist. If you think you may have a surviving spouse elective share claim, it is always best to speak with an attorney to discuss your options.
