The Elective Share

In South Carolina, it is perfectly acceptable to disinherit your children. Spouses; however, have certain rights that may make disinheriting them difficult, if not impossible, unless you have planned ahead.

South Carolina Code §62-2-201 grants spouses the right in South Carolina to claim their elective share if a will executed during their marriage leaves them with less than the required share. This right is entirely separate from the omitted spouse claim which is reserved for spouses whose partner wrote the will before they were married and never updated. As a result of this right, the spouse disinherited in the will can make a claim for a share of one-third (1/3) of the estate. This amount is determined by the value of the estate after the enforceable debts and costs of administration have been paid. Keep in mind that this one-third is not on top of (or in addition to) anything they did receive. For example, if decedent’s spouse was left $10,000 in the will but this was not equal to one-third of the estate, when they file their elective share they will receive the one-third minus the $10,000 gift they already received.

Elective shares generally only apply in situations where there is a will. In estates where no will exists (intestate estates), the law of intestacy apply and the spouse’s share is determined by a separate code (see our easier posts on heirs of the estate).

A spouse who feels they are entitled to more than they were left under the decedent’s last will should not sit back and wait to see what happens. A petition for the elective share must be filed within eight months after the date of decedent’s death or within six months after the probate of the decedent’s will, whichever limitation expires last. It’s also wise to remember that an elective share can only be filed by a spouse (or his/her agent) during the spouse’s life. This can be important to remember if you represent or are related to a spouse who is also unwell or of advanced age. Elective shares can be tricky and the other devisees in the decedent’s last will are sure to look for any loophole to avoid paying. To make sure that your petition is properly filed, that proper notice is given to all parties, and that your share is fairly calculated, legal representation is essential.

Lastly, it is possible to waive your elective share by agreement. Examples include signing a prenuptial or post-nuptial agreement in which you agree not to make a claim or take a share of the estate. Another common example is seen in Family Court when the parties, prior to their divorce, enter an agreement after full financial disclosure which includes language stating they waive any rights to the other parties estate. Prior to waiving your rights, you should also have an attorney review the document and ensure you understand exactly what rights you may be giving up.