Am I An Heir? Part I – Share of Spouse & Children

It’s human nature after the death of someone to be curious as to whether or not you might be an heir to their estate. But, before you quit your day job and rely on living off of an inheritance, you need to know the actual likelihood of you receiving anything at all.

The first question that must be asked is whether or not the decedent had a valid will? If so, that document will control who receives property from his or her estate. Even if you are the next of kin, a valid will can remove your rights to receive and give the property to someone else instead. The only party that has the right to receive, even if disinherited in a will, is the surviving spouse. We will cover that right in a future post on the elective share. If the will leave you nothing and you are not the surviving spouse, you will only receive if you or another interested party proves the will to be invalid.

If there is no will, the property passes to the intestate heirs through the law as determined by S.C. Code in  §62-2-102 and §62-2-103. The statues read as follows:

SECTION 62-2-102. Share of the spouse. The intestate share of the surviving spouse is:

  • (1) if there is no surviving issue (children) of the decedent, the entire intestate estate;
  • (2) if there are surviving issue (children), one-half of the intestate estate.

So, this essentially means that if you were married to the decedent and the decedent had NO children, you will receive 100% of his or her estate. Remember, this does not mean that he/she had no children with YOU, this means the decedent had no children at all, with any person, whether biological or adopted. While this statue clearly establishes the rights of the spouse, the following statute, in relevant part, will be of interest to anyone else.

SECTION 62-2-103. Share of heirs other than surviving spouse.

The part of the intestate estate not passing to the surviving spouse under Section 62-2-102, or the entire estate if there is no surviving spouse, passes as follows:

  • (1) to the issue (children) of the decedent: if they are all of the same degrees of kinship to the decedent they take equally, but if of an unequal degree then those of more remote degree take by representation;

Although only a small portion of the statues, this covers the majority of heirs. By combining §62-2-102 and §62-2-103, you can determine your rights as follows:

  • Surviving Spouse and No Children – Surviving spouse will take 100% of the assets of the estate. This includes those that have proven themselves to be common-law spouses under SC law.
  • Surviving Spouse With Children – Surviving spouse will take 50% of the assets of the estate. The remaining 50% will be divided equally among the children of the decedent, regardless of whether or not they are also children of the surviving spouse. So, if there are two (2) children, they would each get 25%. If there were five (5) children, they would each get 10%. Remember that to be considered a child for the purposes of this statute, you must be a child of the decedent by birth or adoption. Step-children of the decedent are not treated as children under this section. Furthermore, illegitimate children may have to prove their paternity to receive.
  • Children but No Surviving Spouse – If there is no surviving spouse, the children of the decedent will share equally in the estate such that if there are two (2) children they would each receive 50% for a combined 100% of the estate assets.

An important point to remember is that only the spouse must survive in order to be an heir. If a child of the decedent passes away, their children will stand in their shoes and receive their share by representation. For example, if decedent has a wife and four adult children, one of whom has passed away but left behind a child, the wife will take 50% of the estate assets, each of the living adult children will take their 12.5% and the child of the deceased child (grandchild to the decedent) will take the 12.5% that belonged to his/her parent.

And lastly, before planning how you will spend your share, remember that you only receive after the debts of the estate have been paid or resolved. In today’s economy, there are many estates that are left with very little to pass down.

​If the decedent had no surviving spouse, children, or children of children (grandchildren), then move on to Am I An Heir – Part II to see if you might still receive.