Marriage and Inheritance Rights in South Carolina: What Spouses Must Know

Marriage changes many parts of your life. One of the most important areas it affects is your right to inherit. South Carolina law gives married spouses strong protections when a husband or wife passes away. These rights exist whether or not there is a will.

Many couples never think about inheritance until it is too late. They assume a will covers everything. However, South Carolina law provides several layers of protection for surviving spouses. Understanding these rights can help you plan ahead and avoid costly mistakes.

This guide explains how marriage affects inheritance under the South Carolina Probate Code. It covers intestate succession, the elective share, the omitted spouse rule, exempt property, and more. Whether you are newly married or planning your estate, this information is essential.

What Happens When a Spouse Dies Without a Will

When someone dies without a will in South Carolina, state law decides who gets their property. This process is called intestate succession. The rules come from S.C. Code Section 62-2-102.

The surviving spouse’s share depends on whether the deceased had children. If there are no surviving children, the spouse inherits the entire estate. When children do survive, the spouse receives one-half of the intestate estate. The children then split the other half equally.

This rule applies to all property that passes through probate. It does not cover assets with named beneficiaries. Life insurance payouts, retirement accounts, and jointly held property with survivorship rights pass outside of probate.

Additionally, the surviving spouse must outlive the deceased by at least 120 hours. This five-day survival requirement comes from Section 62-2-104. Without meeting this threshold, the law treats the spouse as having died first.

The Elective Share: Protection Against Disinheritance

South Carolina makes it nearly impossible to completely disinherit a spouse. Even if a will leaves nothing to the surviving husband or wife, the law provides a safety net. This protection is called the elective share.

Under Section 62-2-201, the surviving spouse has the right to claim one-third of the deceased spouse’s probate estate. This right exists regardless of what the will says. The probate estate includes property passing under the will and by intestacy. Funeral costs, administration expenses, and valid debts are subtracted first.

South Carolina’s elective share is fixed at one-third. Unlike some states, it does not increase based on the length of the marriage. This flat rate applies whether the couple was married for one year or fifty years.

How to Claim the Elective Share

The elective share is not automatic. The surviving spouse must take action to claim it. Under Section 62-2-205, the spouse must file a petition with the probate court. There are strict deadlines for filing.

The petition must be filed within the later of three time periods: eight months after the date of death, six months after probate of the will, or thirty days after being served with certain probate proceedings. Missing these deadlines can permanently bar the claim.

The surviving spouse must also notify the personal representative and any beneficiaries whose shares would be affected. After a hearing, the court determines the amount of the elective share and orders payment.

What Counts Toward the Elective Share

Calculating the elective share involves more than just the will. Under Section 62-2-207, certain assets count toward the spouse’s one-third share. These include property received through the will, revocable trust assets, life insurance proceeds naming the spouse as beneficiary, retirement accounts, and exempt property claims.

The spouse does not receive the elective share on top of all other benefits. Rather, the assets already passing to the spouse are factored into the total. Only the remaining balance, if any, comes from other estate assets.

Importantly, revocable trust assets are generally included in the calculation. South Carolina courts have held that a revocable trust cannot be used to defeat the elective share. This prevents spouses from hiding assets in trusts to avoid their obligations.

The Omitted Spouse: When the Will Was Written Before Marriage

A different protection applies when someone writes a will and then gets married without updating it. The new spouse may qualify as an “omitted spouse” under Section 62-2-301. This statute can provide even greater rights than the elective share.

An omitted spouse receives the same share they would have gotten if there were no will at all. This means they receive their full intestate share. If no children survive, the omitted spouse would inherit the entire estate. With surviving children, the spouse receives one-half.

Compare this to the elective share of one-third. The omitted spouse provision is often more generous. It recognizes that the deceased likely would have included the new spouse in their estate plan had they updated their will.

Exceptions to the Omitted Spouse Rule

The omitted spouse rule does not apply in every situation. Two main exceptions exist under the statute.

First, the rule does not apply if the will shows the omission was intentional. Courts look at the language of the will to determine whether the deceased purposely left out the new spouse.

Second, the rule does not apply if the deceased provided for the spouse through transfers outside the will. The intent must be clear that these transfers were meant to replace a share under the will. Courts examine the testator’s statements and the size of the outside transfers to make this determination.

The South Carolina Supreme Court first addressed these exceptions in Miles v. Miles, 312 S.C. 408, 440 S.E.2d 882 (1994). The Court held that a spouse is not “provided for” under Section 62-2-301 unless the testator considered the person as a spouse when the will was written. Miles, 312 S.C. at 411, 440 S.E.2d at 883.

The Court of Appeals later applied this rule in Green ex rel. Estate of Cottrell v. Cottrell, 346 S.C. 53, 550 S.E.2d 324 (Ct. App. 2001). There, Martin Cottrell’s will specifically referred to his future spouse by name and stated provisions would apply “whether or not we should ever become husband and wife.” The court found this language showed the will was made in contemplation of marriage. As a result, the surviving spouse did not qualify as omitted. Green, 346 S.C. at 62–63, 550 S.E.2d at 329.

Exempt Property and Additional Protections

Beyond the elective share and omitted spouse protections, South Carolina provides additional benefits to surviving spouses. These rights exist regardless of what the will says.

Exempt Property Allowance

Under Section 62-2-401, the surviving spouse can claim up to $25,000 worth of personal property from the estate. This includes household furniture, automobiles, appliances, and personal effects. The exemption was increased to this amount in 2014.

This exempt property passes to the surviving spouse regardless of intestate succession rules or the terms of a will. It takes priority over almost all claims against the estate. Only administration expenses and certain priority claims come first.

Jointly Held Property

Property held as joint tenants with rights of survivorship passes directly to the surviving owner. It does not go through probate. When one spouse dies, the other automatically becomes the sole owner.

Similarly, assets with named beneficiaries bypass probate entirely. Life insurance proceeds, retirement accounts, and payable-on-death accounts go directly to the designated person. These transfers happen regardless of what the will says. For more on how divorce affects joint tenancy deeds in South Carolina, see our related blog post.

How Divorce Affects Inheritance Rights

Divorce has a dramatic impact on inheritance rights in South Carolina. Under Section 62-2-802, a divorced person is no longer considered a surviving spouse. This means all spousal inheritance rights end upon divorce.

The law goes even further. Section 62-2-507 provides that divorce automatically revokes several types of designations in favor of the former spouse. These include will provisions, trust distributions, beneficiary designations on life insurance and retirement accounts, and powers of attorney.

One critical detail often catches people off guard. A divorce is not final until the decree is signed by the court and filed with the clerk. If one spouse dies before the divorce decree is filed, they are still legally married. The surviving spouse retains all inheritance rights.

This exact issue arose in Hatchell-Freeman v. Freeman, 340 S.C. 552, 532 S.E.2d 299 (Ct. App. 2000). Angela Hatchell-Freeman filed for divorce on June 21, 1996. The final hearing took place on September 27, 1996. However, the husband died intestate on October 7, 1996. The court did not sign the divorce decree until October 10. Applying Section 62-2-802(c), the Court of Appeals held that the couple remained married at the time of death. The court noted that “a divorce or annulment is not final until signed by the court and filed in the office of the clerk of court.” Hatchell-Freeman, 340 S.C. at 557, 532 S.E.2d at 302. As a result, Hatchell-Freeman was entitled to her intestate share and priority for appointment as personal representative.

A decree of separate maintenance does not end inheritance rights either. Only a final divorce or annulment terminates the marital relationship for probate purposes. If you are going through a divorce in South Carolina, updating your estate plan should be a priority.

Prenuptial Agreements and Inheritance Waivers

Spouses can voluntarily waive their inheritance rights. Under Section 62-2-204, the right to an elective share, homestead allowance, and exempt property can all be waived through a written agreement.

Prenuptial agreements are the most common way to accomplish this. However, the waiver must meet specific requirements to be valid. The waiving spouse must sign voluntarily. Both parties must provide fair and reasonable written financial disclosures before signing.

Without proper disclosure, a court may refuse to enforce the waiver. Courts take these requirements seriously because the consequences of a waiver are significant. A spouse who gives up their elective share could be left with nothing if the marriage ends in death.

Postnuptial agreements can also include inheritance waivers. Additionally, a complete property settlement in anticipation of divorce serves as a waiver of all spousal inheritance rights. For more on how these agreements work, visit our page on prenuptial agreements.

Common Law Marriage and Inheritance

South Carolina is one of the few states that still recognizes common law marriage. A valid common law marriage gives the surviving partner the same inheritance rights as any legally married spouse.

However, proving a common law marriage after a partner’s death can be challenging. Under Section 62-2-802(b)(4), a person claiming to be a common law spouse must prove the marriage by clear and convincing evidence. The claim must be established through a court proceeding started before the death or within the statutory time limits after death.

Common law marriage claims in probate often lead to disputes with other family members. If you believe you have a common law marriage, it is wise to formalize the relationship or document it thoroughly. This protects both partners’ rights in the event of death.

Special Concerns for Blended Families

Blended families face unique inheritance challenges. When one or both spouses have children from prior relationships, conflicts often arise between the surviving spouse and stepchildren.

Without a will, the surviving spouse and the deceased’s biological children share the estate under intestate succession. Stepchildren have no automatic inheritance rights. They only inherit if specifically named in a will or through legal adoption.

The elective share can also create tension. A surviving spouse’s claim to one-third of the estate may reduce what biological children receive. Careful estate planning is essential to balance the needs of both the surviving spouse and children from prior relationships.

Tools like trusts, life insurance, and beneficiary designations help families achieve this balance. A qualified family law attorney can help you create a plan that protects everyone in your blended family.

Steps to Protect Your Inheritance Rights

Taking proactive steps now can prevent major problems later. Here are key actions every married couple should consider.

1. Create or Update Your Will. Every married person should have a current will. If you married after writing your will, update it immediately. Failing to do so could trigger the omitted spouse provision and override your intended distributions.
2. Review Beneficiary Designations. Check all life insurance policies, retirement accounts, and payable-on-death accounts. Make sure the named beneficiaries match your current wishes. These designations override your will.
3. Consider a Prenuptial or Postnuptial Agreement. If you want to modify the default inheritance rules, put it in writing. A valid agreement with full financial disclosure can waive or limit spousal inheritance rights.
4. Review Property Titles. Understand how your property is titled. Joint tenancy with rights of survivorship, tenancy in common, and sole ownership each have different effects on what happens when one spouse dies.
5. Plan for Blended Family Dynamics. If either spouse has children from a prior relationship, use trusts and beneficiary designations to ensure fair treatment for all family members.
6. Update Your Plan After Major Life Events. Marriage, divorce, births, deaths, and significant financial changes should all trigger a review of your estate plan. Do not let outdated documents create unintended consequences.

Critical Deadlines for Surviving Spouses

Missing a deadline can permanently eliminate your inheritance rights. South Carolina law sets strict time limits for spousal claims.

For the elective share, the petition must be filed within eight months of the date of death or six months after probate of the will. The later deadline controls. The omitted spouse claim follows the same general timeline. In both cases, a thirty-day extension applies if the spouse is served with certain probate proceedings.

These deadlines are firm. Courts do not grant extensions for good intentions or lack of knowledge. If you are a surviving spouse with potential claims, consult an attorney as soon as possible after your spouse’s death.

Why You Need a South Carolina Family Law Attorney

Inheritance law involves overlapping statutes, strict deadlines, and complex calculations. A single mistake can cost a surviving spouse thousands of dollars or more. Working with an experienced attorney protects your rights and ensures you meet every requirement.

An attorney can help you understand how the elective share applies to your situation. They can guide you through the probate process and ensure all necessary filings happen on time. For couples planning ahead, an attorney can draft wills, trusts, and prenuptial agreements that reflect your wishes while complying with South Carolina law.

Whether you need to file an elective share claim, contest a will, or simply plan for the future, professional guidance makes all the difference. Learn more about our family law services and how we can help protect your family’s future.

Contact Klok Law Firm LLC Today

Understanding your inheritance rights is essential for protecting yourself and your family. Whether you need help with estate planning, a prenuptial agreement, or a spousal inheritance claim, Klok Law Firm LLC is here to guide you.

Call us today at (843) 216-8860 or email sklok@kloklaw.com to schedule a consultation. Our Mount Pleasant office serves families throughout Charleston, Berkeley, and Dorchester counties.

Do not wait until a crisis forces you to act. Contact Klok Law Firm LLC today and take the first step toward protecting your family’s future.

_____________________________________________________________