Death During Divorce: SC Property Rights

Death During Divorce: What Happens to Joint Tenancy Property and Can a Marital Apportionment Claim Survive in South Carolina?

Divorce is stressful. Then a spouse dies in the middle of it. Now what?

This is not a rare situation. Spouses sometimes die during pending divorce cases. When they do, two critical questions come up immediately.

First, if real property is titled as joint tenants with rights of survivorship (JTWROS), does the surviving spouse automatically own everything?

Second, does the deceased spouse's claim for marital apportionment simply disappear? Or does it survive death?

The answers matter enormously. They determine who ends up with the marital home, rental properties, retirement accounts, and other shared assets.

South Carolina law provides clear answers. However, many people do not know these rules exist. Understanding them could protect a significant portion of an estate.

At Klok Law Firm LLC, we handle complex family law and property matters throughout Charleston, Mount Pleasant, and South Carolina. Call us at (843) 216-8860 for a consultation.

What Is Joint Tenancy with Rights of Survivorship (JTWROS)?

Joint tenancy with rights of survivorship is a way two or more people can own property together. Under this form of ownership, if one owner dies, the property passes automatically to the surviving owner. No probate is required.

South Carolina recognizes JTWROS under S.C. Code Ann. § 27-7-40. The deed must include specific language stating that the owners hold the property "as joint tenants with rights of survivorship, and not as tenants in common."

Married couples often choose JTWROS. It allows the surviving spouse to keep the marital home without going through probate. For many families, this is a major benefit.

However, JTWROS has a critical limitation during divorce. The right of survivorship can be severed. Under South Carolina law, a final divorce decree converts the joint tenancy into a tenancy in common. Before that final order, the survivorship right remains intact. See Williams v. Jeffcoat, 444 S.C. 224, 228, 906 S.E.2d 588, 591 (2024) (upholding severance of JTWROS under the statute, noting that S.C. Code Ann. § 27-7-40 governs such determinations).

How Does Divorce Affect JTWROS in South Carolina?

When a couple divorces, the JTWROS is severed. The final order converts the joint tenancy into a tenancy in common. After conversion, each party owns a separate share. That share passes to their estate if they die — not automatically to the surviving spouse.

But what if the divorce is not final when one spouse dies? This is where things get complicated.

Filing for divorce does not automatically sever the joint tenancy. Only a final court order does. Therefore, if a spouse dies before the divorce is finalized, the JTWROS may still be in effect.

This means the surviving spouse could receive the property by operation of law. Title could pass automatically — even if a divorce was pending and both parties were fighting over the property.

Key Rule: A pending divorce case alone does not sever a joint tenancy under South Carolina law. The joint tenancy remains intact until a final order is entered. S.C. Code Ann. § 27-7-40; Williams v. Jeffcoat, 444 S.C. 224, 228, 906 S.E.2d 588, 591 (2024).

Does a Marital Apportionment Claim Survive the Death of a Spouse?

Here is the most important question for estates and family members: if a spouse dies while the divorce is pending, does the claim for equitable apportionment of marital property die with them?

The answer is no. The claim survives.

The Seels v. Smalls Decision (2022)

The South Carolina Supreme Court settled this issue in Seels v. Smalls, 437 S.C. 167, 877 S.E.2d 351 (2022). This landmark ruling directly addressed whether a marital apportionment claim abates upon the death of a party.

Olivia Seels Smalls filed for divorce in October 2014. Both she and her husband sought equitable apportionment of the marital estate. The marital estate included the marital home, eighteen rental properties, and multiple financial accounts.

The parties began mediation. Then Olivia's cancer returned. She died in December 2015 before any agreement was finalized. Her brother, Randall Seels, was appointed personal representative of her estate. He sought substitution as a party to continue the property division case.

Husband argued the case should be dismissed. He claimed that Olivia's death ended the family court's jurisdiction. He said only the probate court could now divide the property.

The Supreme Court disagreed. It affirmed that the family court properly retained jurisdiction. At page 359 of the opinion, the Court confirmed that "claims for equitable apportionment do not abate upon the death of a party." Seels, 877 S.E.2d at 359. The family court ultimately divided the marital estate 50/50.

Why Does the Claim Survive?

The answer lies in S.C. Code Ann. § 20-3-610. Under South Carolina law, each spouse has a vested interest in the marital property. This interest arises when the marital litigation is filed — not when the court issues a final order.

Because the interest is vested upon filing, it does not disappear when the party dies. It remains part of the estate. The personal representative can then stand in for the deceased spouse and continue the property division case.

South Carolina courts draw a clear distinction here. Claims that are personal in nature — like divorce itself and requests for spousal support — do abate upon death. However, property claims do not. They survive because they are rooted in vested property rights.

The Court relied heavily on Hodge v. Hodge, 305 S.C. 521, 525, 409 S.E.2d 436, 439 (Ct. App. 1991). That case first established that "the death of one party to an action does not abate an action for equitable distribution." The Supreme Court in Seels reinforced this rule and applied it to the modern equitable apportionment statute. Seels, 877 S.E.2d at 357-59.

The Tension Between JTWROS and Equitable Apportionment

This is where the two legal principles collide. If a spouse dies during pending divorce litigation, two things may be true at the same time:

The JTWROS may cause title to pass automatically to the surviving spouse by operation of law, and
The deceased spouse's estate may still have a vested interest in the marital property subject to equitable apportionment under § 20-3-610.

So which one wins?

The answer is that both can be true simultaneously, but the family court retains authority to apportion the marital estate. Title passing by JTWROS does not end the estate's claim to an equitable share.

The family court can divide the marital property by awarding the estate a monetary equivalent or apportioning specific assets. The surviving spouse does not automatically keep everything simply because title passed by survivorship.

This is a crucial protection for the heirs and beneficiaries of the deceased spouse's estate. Without it, the surviving spouse could receive a windfall — taking the property by JTWROS while also retaining other marital assets.

Practical Note: Even if a property deed shows "joint tenants with rights of survivorship," the family court can still apportion the marital estate when marital litigation was pending at the time of death. Seels v. Smalls, 877 S.E.2d at 359.

What Happens in the Probate Court?

When a spouse dies during pending divorce litigation, the probate court and the family court may both have roles. However, their jurisdiction is different.

The family court has exclusive jurisdiction over marital property when marital litigation is pending. This authority comes from S.C. Code Ann. § 63-3-530(A)(2). Even after one party dies, the family court retains this exclusive jurisdiction. Seels, 877 S.E.2d at 355-56 (holding that the family court's exclusive jurisdiction under § 63-3-530(A)(2) was not divested by Wife's death).

The probate court handles administration of the estate. It distributes assets not subject to family court apportionment. These two courts can operate concurrently, but the family court's authority over marital property takes priority.

Additionally, the surviving spouse may not qualify as a "surviving spouse" under the Probate Code once certain orders are entered. Under S.C. Code Ann. § 62-2-802(b)(3), a party to a valid proceeding concluded by an order confirming equitable distribution is disqualified from surviving spouse status in probate. In Seels, this provision prevented the husband from claiming rights as a surviving spouse — even though the couple was still married at wife's death. Seels, 877 S.E.2d at 359.

What About the Elective Share?

South Carolina's elective share laws add another layer of complexity. The Supreme Court addressed this directly in Weeks v. Weeks, Op. No. 28247 (S.C. Dec. 18, 2024).

Under S.C. Code Ann. § 62-2-201, a surviving spouse may claim one-third of the deceased spouse's probate estate. This right remains intact even during pending divorce proceedings — unless a final order has been entered.

Temporary orders are not enough. The Supreme Court was explicit on this point. Temporary, pendente lite family court orders are temporary by their very nature. They do not terminate marital property rights.

The Court stated: "There is no such creature as a 'temporary' equitable distribution order. Equitable distribution occurs only by a final order of the family court." Weeks, Op. No. 28247, slip op. at 7 (citing S.C. Code Ann. § 20-3-620(C)). Only a final divorce decree or a final equitable distribution order terminates elective share rights.

This means that if a spouse dies before finalization, the surviving spouse may also pursue an elective share claim in probate — even while the family court is apportioning the marital estate. These are separate proceedings with overlapping implications.

Steps to Protect Your Interests During Divorce in South Carolina

If you are in the middle of a divorce in South Carolina, certain steps can protect your estate and your heirs. These steps are especially important when health concerns exist or significant marital assets are at stake.

File for equitable apportionment immediately. Filing the action vests your interest in the marital property under S.C. Code Ann. § 20-3-610. Delay can cost your estate significantly.
Update your estate planning documents. Review your will and beneficiary designations to reflect the current situation. Failing to update them may allow your spouse to inherit more than intended.
Consider naming a personal representative. If you become unable to continue the case, a personal representative can step in and continue the property division on your behalf. See Seels, 877 S.E.2d at 359.
Review how your property is titled. Talk to your attorney about whether your deeds should be changed during the divorce. The JTWROS designation in a deed can be modified under S.C. Code Ann. § 27-7-40.
Do not rely on temporary orders. Temporary agreements do not cut off either party's property rights. Only a final order signed and filed by the court achieves finality. Weeks, Op. No. 28247, slip op. at 7.

Call Klok Law Firm LLC today at (843) 216-8860 to discuss how to protect your rights and your estate during a South Carolina divorce.

Summary: Key Points to Remember

JTWROS allows property to pass automatically to the surviving co-owner upon death under S.C. Code Ann. § 27-7-40. This right remains in effect until the joint tenancy is severed by a final order.
Filing for divorce does not sever JTWROS. Only a final court order does. Williams v. Jeffcoat, 444 S.C. 224, 228, 906 S.E.2d 588, 591 (2024).
A claim for marital apportionment does NOT abate upon the death of a party. Each spouse's interest vests upon filing under § 20-3-610. The personal representative may continue the case. Seels v. Smalls, 877 S.E.2d 351, 359 (2022).
Claims for divorce and spousal support DO abate upon death. Property claims do not. Hodge v. Hodge, 305 S.C. 521, 525, 409 S.E.2d 436, 439 (Ct. App. 1991).
The family court retains exclusive jurisdiction over marital property even after the death of a party. S.C. Code Ann. § 63-3-530(A)(2); Seels, 877 S.E.2d at 355-56.
Temporary orders do not terminate marital property rights or elective share rights. Only final orders do. Weeks v. Weeks, Op. No. 28247 (S.C. Dec. 18, 2024), slip op. at 7.