What a Will Can and Can’t Do
A last will is an important and powerful estate planning document. However, there are many things you cannot legally do through a will. Before drawing up your own will, you should know what a will can and can’t do so you can ensure your intentions are carried out.
Note that laws regarding wills vary from state to state. Speak with an estate planning attorney in your state if you have specific questions about what is and is not allowed under the law in your state.
A will can: Direct where assets subject to probate should go.
A will can direct where assets subject to probate go. Probate is the court-supervised process that settles the estate’s debts and taxes and transfers the remaining assets to the appropriate beneficiaries. Common assets subject to probate include:
- Real property solely owned or owned as tenants in common
- Bank and investment accounts without a beneficiary
- Personal property like cars, clothes, and furniture
Learn more about probate in South Carolina here on our blog.
A will cannot: Direct where assets not subject to probate should go.
A will cannot disburse assets that are not subject to probate, such as:
- Real property owned as joint tenants with rights of survivorship
- Payable on Death (POD) or Transfer on Death (TOD) accounts
- 401Ks, IRAs, and other retirement and pension accounts with a named beneficiary
- Life insurance proceeds from a policy with a named beneficiary
- Assets in irrevocable trusts and revocable living trusts
These assets are not subject to probate and go directly to the listed beneficiary or co-owner (in the case of assets owned jointly), bypassing probate altogether. Only if the assets are unable to go to the beneficiary or co-owner – if, for example, they predeceased you – would they end up going through probate.
A will can: Disinherit a blood relative.
A testator has the right to disinherit an adult child, sibling, parent, or any other blood relative in their will. (Whether an individual can legally disinherit a minor child depends on state law.)
A will cannot: Disinherit a spouse.
Spouses are protected under the law and are entitled to a portion of the deceased spouse’s estate after death, regardless of the provisions in the will. The only way to disinherit a spouse is to get their knowing consent in writing, and that must happen separately from the will.
In community property states, the surviving spouse is automatically entitled to the “community property share,” which is one half of the assets acquired during the marriage. Couples in these states may use a prenuptial agreement or postnuptial agreement to waive the surviving spouse’s right to the community property share.
Other states have something called “elective share,” a portion of the deceased spouse’s estate that the surviving spouse is entitled to under the law. This amount varies by state; in South Carolina, it’s one third. The only way to legally disinherit a spouse is for both spouses to sign a waiver of elective share. Read more about how to disinherit a spouse in South Carolina with a waiver of elective share here on our blog.
A will can: Put reasonable conditions on inheritance.
A testator is allowed to put legal, reasonable conditions on inheritance. For instance, a testator may say that their daughter will inherit the lake house when she turns 25 or that their nephew will inherit $50,000 if he earns a college degree by 30.
A will cannot: Put invalid conditions on inheritance.
A testator cannot make inheritance conditional on things that are illegal or that violate public policy. For instance, stipulating that a son will inherit his portion of the estate only if he marries someone of the same race or that a daughter will inherit $100,000 if she divorces her current husband will likely not be honored.
This is case-dependent and varies by state, so if you are considering including questionable stipulations in your will, discuss it first with an experienced estate planning attorney in your state.
A will can: Name individuals to certain roles.
The testator can name the people you’d like to be your personal representative / executor, guardian(s), and trustee(s). Naming people who are fit for the job and who have already agreed to take it on can save time in the probate process.
A will cannot: Obligate individuals to take certain roles.
An individual named in the will is not legally obligate to take on the role and may decline it. In that case, the probate judge will appoint someone else.
For this reason, it’s wise to talk with the individuals you choose to make sure they agree to take on the role and to include a back-up, just in case.
A will can: Help avoid Family Malpractice™.
Family Malpractice™ is a term we use for an individual whose actions or negligence have put their family in a bad legal situation. Most often, this happens as a result of not doing something that should have been done, such as not having a valid will drawn up. Dying without a will is one of the main causes of Family Malpractice™, as it can cause financial hardships, legal challenges, and family rifts for those left behind.
Getting a will is not just about carrying out your wishes after you’re gone, but about protecting your family and their future, too.
Get Help with Your Will and Estate Plan
Do you have a last will in place or are you relying on the government to decide where your assets should go after your death? If you live in South Carolina and you’re looking for help creating or updating a will, call estate planning attorney Gem McDowell. Gem and his team at the Gem McDowell Law Group help individuals and couples in South Carolina create wills and estate plans tailored to their circumstances and needs. Call 843-284-1021 to schedule an appointment or a consultation at the Myrtle Beach or Mount Pleasant, SC office today.
The Omitted Spouse: When the Spouse is Left Out of the Will
What happens if you leave your spouse out of your will? Or your spouse leaves you out of his or her will?
This happens more often than you think. Many couples get married after one or both partners already executed a last will, meaning the new spouse has been unintentionally left out.
But that doesn’t mean the surviving spouse receives nothing. The law provides for the omitted spouse so that he or she is not unintentionally disinherited.
What the Omitted Spouse is Entitled To
Under South Carolina Code section 62-2-301, an omitted spouse is entitled to the same share of the testator’s estate that would have been received had the testator died without a will.
South Carolina intestacy laws determine the share of inheritance in such cases. If the testator dies with no children, the spouse inherits everything (i.e., all the assets subject to probate). If the testator dies with a spouse and children, the surviving spouse is entitled to 50% of the estate. The remaining 50% is divided according to the terms of the will.
The omitted spouse does not automatically receive the assets but must claim his or her share within a certain time frame.
When the Omitted Spouse Provision Does Not Apply – Spousal Elective Share
The purpose of the omitted spouse is to provide for a spouse left out of the will unintentionally.
But what if the spouse was left out of the will intentionally?
Under the same law cited above, if it appears that the omission was intentional or if the testator provided for the spouse through transfers outside of the will, then the omitted spouse provision does not apply.
The surviving spouse may still make a claim for elective share, however. A surviving spouse is entitled to one third of the testator’s probate estate in South Carolina even if the testator intentionally left the spouse out of the will. That’s because the only way to legally disinherit a spouse in South Carolina is to have both partners knowingly sign a waiver of elective share. (Read more about disinheriting a spouse and spousal elective share here on our blog.)
The Solution: An Intentional and Current Estate Plan
Laws regarding omitted spouses and elective share have helped many people who would otherwise have been disinherited. But having a purposeful, up-to-date will and estate plan is better than relying on the law to carry out your wishes.
For help with last wills, trusts, powers of attorney, and other estate planning documents, call estate planning attorney at the Gem McDowell Law Group. Gem and his team help individuals and families in South Carolina create estate plans that take into account unique circumstances, carry out personal wishes, and give peace of mind.
Whether you’ve never had an estate plan drawn up before or your existing plan is in need of a review, Gem and his team can help. Call today to schedule a free consultation virtually or at the Myrtle Beach or Mt. Pleasant, SC, at 843-284-1021.
How to Disinherit a Spouse in South Carolina Through Elective Share Waiver (Or: Pillow Talk Is Not Enforceable)
A lady came to our offices for help with her estate plan which included setting up a new trust to hold her assets. She planned to leave everything to her kids and nothing to her husband, which she said her husband had agreed to. He never signed anything on paper to that effect, but she insisted that he was okay with the arrangement.
Literally the following week, she died. Her husband then filed for elective share, which is the portion of a deceased person’s estate that a surviving spouse is entitled to by law. There was nothing barring the husband from receiving a portion of his wife’s estate, despite her wishes.
What could the wife have done differently?
Below we’ll look at elective share and how to disinherit a spouse in South Carolina.
Elective Share in South Carolina
A surviving spouse is entitled to a portion of the deceased spouse’s estate under the law regardless of the terms of the deceased spouse’s will. This portion is called the elective share, or spousal elective share. The portion the surviving spouse can claim varies by state; in South Carolina, it’s one third.
The surviving spouse may claim elective share even if the couple was estranged or in divorce proceedings at the time at the time of death. We previously covered a case on this blog in which a surviving spouse was able to claim elective share after the court granted the couple’s divorce, since the husband happened to die in between the court’s decision and the clerk filing and recording the divorce decree. [Read about that case, Hatchell-Freeman v. Freeman (2000) here.]
What the Surviving Spouse is Entitled To
In South Carolina, the surviving spouse is entitled to one third of the deceased spouse’s estate. This third includes assets that are not subject to probate, such as life insurance proceeds, retirement accounts, property owned jointly with right of survivorship, and assets in revocable trusts. The value of these and other interests due to the surviving spouse count towards the elective share first, along with the value of anything that was renounced or disclaimed. Only then is the balance due taken from the probate estate.
Claiming elective share usually means a surviving spouse will inherit assets that would otherwise have gone to other heirs named in the deceased spouse’s will. Because of this, the surviving spouse has a duty under South Carolina code Section 62-2-205(b) to inform recipients of the probate estate whose interests are adversely affected of the time and date of the hearing set to determine elective share.
Disinheriting a Spouse in South Carolina: A WRITTEN Waiver of Elective Share
The laws regarding elective share ensure that a spouse is not easily disinherited.
But an individual can fully disinherit a spouse in South Carolina. This may happen, for example, in blended families when each spouse wants to leave their assets to their own children and knows that the other spouse is financially secure. Or an individual may wish to disinherit a spouse because of estrangement or separation.
Whatever the reason, it’s important to know that drawing up a will or creating an estate plan that intentionally leaves out the spouse is not enough. The couple must take active steps to disinherit a spouse in South Carolina.
Written Waiver of Elective Share
A spouse may voluntarily agree to give up all or part of their elective share. The spouse who is to be disinherited must agree to waive the right to elective share in writing. Such a waiver is often part of a prenuptial or postnuptial agreement but may be a standalone document.
The spouse waiving their right to elective share in whole or in part must be fully aware of what they are giving up. South Carolina code Section 62-2-204 requires that the disinheriting spouse provide “fair and reasonable” disclosures of their property and financial obligations in writing to the waiving spouse.
Schedule a Free Consultation with Estate Planning Attorney Gem McDowell
For legal help and advice on waiver of elective share, prenuptial or postnuptial agreements, probate, or other estate planning concerns, call Gem McDowell of the Gem McDowell Law Group of Mt. Pleasant and Myrtle Beach. Gem and his team help families in the greater Charleston and Myrtle Beach areas create and review estate plans to help ensure their wishes are carried out.
Gem can also help you understand the consequences and potential downsides of your estate plan. Sometimes estate plans created with the best of intentions can lead to unintended consequences, disputes, and fractured relationships between family members and heirs.
If you have a complicated family situation, a large estate, or you simply want a basic estate plan put in place for your peace of mind, call Gem and his team today at 843-284-1021.
What Happens to Your Estate If You Die During a Divorce in South Carolina? Spousal Elective Share
Imagine this scenario:
Husband and Wife have been married for many years. One day, Wife files for divorce. At a hearing a few months later, the divorce is granted.
Husband dies about a week later.
A few days after that, the final divorce decree is signed by the judge, then filed with the clerk.
The tragic and unlikely timing of Husband’s death brings up some important questions.
- Were Husband and Wife still married when he died because the decree wasn’t yet signed and filed?
- Or were they already divorced because the divorce had been officially granted by the court?
- Would Wife be entitled to part of Husband’s estate as a surviving spouse?
This exact situation happened in South Carolina in the late 90s and ended up before the South Carolina Court of Appeals in the 2000 case Hatchell-Freeman v Freeman. It’s an interesting case to know for anyone contemplating or going through a divorce in South Carolina as it answers the questions above.
Dying Before Divorce Is Finalized: Hatchell-Freeman v. Freeman (2000)
In the Hatchell-Freeman case (read it here), Angela Hatchell-Freeman filed for divorce on June 21, 1996. The divorce was granted at a hearing on September 27, 1996, and ten days later, on October 7, Husband died. The final order granting the divorce was signed on October 10, and the following day the order was filed.
In December, father of the decedent Gilbert Freeman filed a petition to be appointed personal representative of his late son’s estate, which the court granted. He did not list Hatchell-Freeman as an intestate heir or as “a person having a prior or equal right of appointment.”
In January, Hatchell-Freeman filed a notice of election by surviving spouse for her intestate share – aka “elective share,” which is a portion of the decedent’s estate the surviving spouse is entitled to by statute. The probate court ruled that she was entitled to elective share.
She also filed a petition to be appointed personal representative, which would mean removing Gilbert Freeman from the role. The probate court ruled that she had had “adequate” time to file – over three months since her husband’s death – and so denied her petition.
Both parties appealed.
The Circuit Court’s Findings
The circuit court affirmed the probate court’s finding that Hatchell-Freeman was the wife of the decedent at the time of his death and therefore entitled to her elective share.
However, it found that she had a superior right to serve as personal representative. Gilbert Freeman was removed from the role and replaced by Hatchell-Freeman.
Gilbert Freeman then appealed.
The SC Court of Appeals
The appeals court affirmed the circuit court’s findings.
It found that the couple was indeed married at the time of Husband’s death, making Hatchell-Freeman eligible to receive her elective share of the estate. The fact that the divorce had been granted at the final hearing before Husband’s death was irrelevant, as South Carolina Code 62-2-802(c) (1987) is clear: “A divorce or annulment is not final until signed by the court and filed in the office of the clerk of court.”
The court also affirmed the lower court’s decision to replace Gilbert Freeman with Hatchell-Freeman as personal representative. SC Code 62-3-203(a) (1999) lists in order which individual should be given priority for the role of personal representative, and when there is no will naming a personal representative (as in this case, since Husband died intestate), a surviving spouse has priority over other heirs.
Although it may not have been Husband’s intention for the woman he was divorcing to inherit any portion of his estate, that’s what happened. But was there something he could have done to prevent it?
(Technically) Married at Time of Death: Spousal Elective Share in South Carolina
As stated above, a surviving spouse is entitled to spousal elective share, which is a portion of the deceased spouse’s estate. The concept of elective share originates from English common law and is widespread across the US, with different laws governing elective share in different states.
In South Carolina, a surviving spouse may claim one third of the decedent’s probate estate. (“Probate estate” is defined in SC Code Section 62-2-202 as “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.”) This is a minimum; the testator or testatrix can of course leave more than one third of their estate to their spouse in their will.
It doesn’t matter whether the decedent had a will or not; whether the couple was separated at the time of decedent’s death, divorce pending; or even whether the decedent had purposely left the surviving spouse out of the will in an attempt to disinherit them. The surviving spouse is legally entitled to their elective share.
In short, if you die before your divorce is signed and filed, your spouse is entitled to claim a portion of your estate under South Carolina law even if that’s not what you want. The only exception is if your spouse has waived their right to elective share, typically via a prenuptial or postnuptial agreement.
Reviewing and Revising Your Estate Plan During or After Life Events – Call Attorney Gem McDowell
If you’ve recently undergone a major life event like divorce, marriage, or birth of a child, you should consider contacting an estate planning attorney to review your last will, powers of attorney, and other estate planning documents. It’s a good opportunity to ensure that your estate plan is in line with your current wishes and life situation.
For help with estate planning, asset protection, and contracts including prenuptial agreements and postnuptial agreements, contact attorney Gem McDowell. He and his team at the Gem McDowell Law Group can help you with your estate planning needs before, during, and after a divorce. Call him at his Mt. Pleasant office at 843-284-1021 today to schedule a free consultation.
