Spousal Elective Share: What It Is and How to Claim It In South Carolina
“Elective share” is the portion of a deceased person’s estate that a surviving spouse is entitled to under the law in separate property states. A surviving spouse may claim it regardless of the provisions of the will. This concept comes from English common law and prevents a surviving spouse from being completely disinherited.
Here’s what to know about spousal elective share.
A surviving spouse is entitled to a portion of the deceased spouse’s estate.
The amount of the estate a surviving spouse is entitled to varies by state, usually one third or one half. In South Carolina, it’s one third.
Also, in South Carolina, the elective share comes out of the estate subject to probate. In some other states, the elective share is taken from the augmented estate, which includes probate assets and some non-probate assets.
Elective share applies only when there is a will.
Elective share is applicable when the deceased spouse had a will but the will did not leave anything to the surviving spouse or left less than what the elective share would be. A spouse may claim this portion unless the couple previously signed something like a waiver of elective share or a pre- or post-nuptial agreement. Read more about how to disinherit your spouse in South Carolina.
If the spouse dies without a will (aka, dies intestate), then the surviving spouse inherits a portion of the estate – often 50% or 100% – under intestacy laws, which vary by state. Read more about what happens if you die without a will in South Carolina here on our blog.
Some states, like South Carolina, also have an omitted spouse provision. If it’s clear that the spouse was left out of the will unintentionally, then the surviving spouse can claim a portion of the estate that they would have received under intestacy laws. Read more about the omitted spouse provision on our blog.
It is elective – not automatic.
The “elective” part of spousal elective share means the surviving spouse must elect to take it; it is not automatically distributed to the surviving spouse.
The process to claim the elective share varies by state. In South Carolina under SC Code 62-2-205, the surviving spouse must file with the court and inform the personal representative generally within eight months after the decedent’s death.
Get help with wills, probate, estate planning in South Carolina
Gem McDowell is an estate planning attorney with over 20 years of experience helping individuals and families in South Carolina. He and his team will work with you to create a will and an estate plan personalized to you and your family’s circumstances and needs. They also help families after a death by guiding the probate process or help contesting a will when the situation arises. Call Gem and his team at their Myrtle Beach or Mt. Pleasant, SC offices today at 843-284-1021 to schedule a free consultation.
Left Out of the Will – Now What? Omitted Spouse, Pretermitted Child
What happens if you’ve been left out of the will?
It depends – on state law, your relationship to the deceased, and other factors.
Under state law, some parties are entitled to a portion of the estate when the testator has unintentionally left them out of the will. That’s what we’ll look at today.
Disinherited or Omitted?
Were you left out of the will intentionally or unintentionally? While many people use the word “disinherited” for both circumstances, they are different.
Someone left out of the will intentionally has been disinherited. We will cover what to do if you’ve been disinherited in a future blog.
Someone left out of the will unintentionally may be referred to as pretermitted or omitted. Unintentional omission typically occurs when the testator doesn’t update his or her will after getting married or having or adopting a child. The assumption is that had the testator updated the will, the new spouse and/or child would have been included. State law determines what a spouse or child who was accidentally left out of the will is entitled to, and laws can vary greatly by state.
The Omitted Spouse or Pretermitted Spouse
South Carolina law protects the omitted spouse. If it’s clear the spouse was left out of the will unintentionally (rather than intentionally disinherited), the surviving spouse can claim the portion of the estate they would have received under intestacy laws, i.e., had there been no will at all. Read more about the omitted spouse provision on our blog.
Many other states have similar omitted spouse or pretermitted spouse laws. However, not all do, so it’s important to speak with an attorney in your state.
The Pretermitted Child
South Carolina law (Section 62-2-302) also protects the pretermitted child, which is a child who was born or adopted after a will is executed. The pretermitted child is entitled to a portion of the estate that they would have received under South Carolina’s intestacy laws, unless:
- It appears the omission was intentional, or
- The testator left “substantially all his estate to his spouse,” or
- The testator “provided for the child by transfer outside the will” with the clear intention of that being in place of inheritance through the will
If the will was executed after the child was born or adopted, the child is not considered a “pretermitted child” and the above does not apply. The court will assume that the omission was intentional.
Many other states have similar laws, but they vary widely, so check with an attorney in your state.
Other Parties
Only the spouse and child(ren) of the deceased may have a claim under state law, and that varies by state. If you were not named in the will but believe the testator intended to leave you an inheritance, you might want to look into grounds for contesting the will.
Get help with wills, probate, estate planning in South Carolina
If you need help with probate, creating a will, contesting a will, or other estate planning matter in South Carolina, call Gem McDowell. Gem and his team at the Gem McDowell Law Group help individuals and families across South Carolina create estate plans that are personalized to reflect their unique circumstances and wishes. They also help with matters of probate, whether straightforward or complicated. Call Gem and his team at their Myrtle Beach or Mt. Pleasant, SC offices today at 843-284-1021 to schedule a free consultation.
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.
