The Elective Share

In South Carolina, it is perfectly acceptable to disinherit your children. Spouses; however, have certain rights which 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 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.

 

 

Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.

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21 Responses to The Elective Share

  1. Rosemary Gaul says:

    Tiffany
    I am researching the spouse’s elective share and the very first page I pull up is your article.
    Thanks for the insight. I really am having a tough time getting to the heart of this topic.

    Rosemary

  2. BB says:

    What if the spouse, who had power of attorney, signed closing documents for the sale of a lake house that was solely in the deceased’s name only 2 months before he passed, then deposited that money in accounts in her name before he died? Can she be considered already in receipt of her inheritance or elective share? The deceased wanted to sell the house, but also intended the money go to his estate. The POA was a general with no gifting provisions.

  3. Doug Delaney says:

    Do you have any insight on whether the elective share provision would grant priority status (even as to preference under federal law) through a family allowance type of argument?

  4. Hi Doug – thanks for your post. I’ve never heard of an elective share being used to grant a higher priority status. Spouses generally have the highest priority anyway and since you must be a spouse to make an elective share claim I’m not sure how it would help. I might not be understanding your question correctly and am happy to toss around some ideas if you would like. Give me a call at 843-871-9500 or email me at Tiffany@ProvenceMesservy.com.

  5. Debra Rawls says:

    My dad passed last year and I will be going to probate court later this month so time is of the essence. Looking for a loophole so to speak as my dad was not divorced from his spouse. She deserted him six years prior to his death. She was included in his will, receiving the same portion as his 3 children, but she is choosing to take her elective share. She is also receiving his military pension, military health benefits, and social security. My father started divorce proceedings but did not go forward only because he wanted her to continue to receive health benefits as she had several health issues. Since this law’s intent was to ensure that the spouse was not omitted from the will, and she is clearly provided for with the above mentioned benefits, and they more than make up one third of the estate, couldn’t the probate court let his will stand as written?

  6. It sounds like you might be confusing the Omitted Spouse law with the Elective Share. Just to clarify . . .

    Omitted Spouse laws allow a spouse who was OMITTED (i.e. left out) from a will to claim 1/2 of the estate. In order to make this claim, the will has to have been executed BEFORE the marriage. This does not apply in this situation. The goal of this law is to provide a lawful spouse the same share they would receive had their spouse died intestate (without a will).

    The Elective Share in South Carolina provides any lawful spouse the ability to claim one-third (1/3) of the estate without regards to the will. This is a spousal protection law. The right to an elective share is a given, the only question you present is what the share should be. In this case, the court will look at the total value of the estate (based largely in part on the inventory and testimony) and then determine what a 1/3 value would be. If the Last Will already gives the spouse that value, they will not receive anything additional. In other words, the elective share is not 1/3 PLUS what you receive in the will. It’s a total share of 1/3 and any items in the Last Will are subtracted from that share.

    In the scenario you present, it looks like she is currently receiving a 1/4 share and that will likely be increased to 1/3. Unfortunately, there is nothing that can be done about the status of their marriage. SC has VERY strong case law (see Hatchell-Freeman v. Freeman) which says the spouse is entitled until a divorce is final or an agreement is in place which removes these rights. In your case, your father’s generosity and willingness to help an estranged spouse will ultimately deprive his children of an increased inheritance.

  7. roger edwards says:

    I have been reading through your website and found it very helpful. My dad passed a few months ago testate in SC. Beneficieries named in the will were my brother and I for real prop to be shared. My brother’s mom has since filed for her elective share. An asset I heard she is coming after is a lot on a lake. The lot was purchased for me as a college graduation gift in 2000 and they were married in 2001. The land is titled as tenants in common and not joint tenancy with rights between me and my dad. It was free and clear until 2009 when we did a LOC for $30k. The balance to date is approx $18.2k, which I have been paying since I was cosigner on loan, along with taxes and county club dues. I have been told by dad’s attorney if anyone inherits property with a debt attached they inherit the debt as well. It’s highly unlikely she would want it if that’s true but. But would I still be responsible for the total debt if she does gets it, will it(loan balance) be split equally between us? Am I able to recover any loan payments I have made?

  8. roger edwards says:

    She is the personal rep named in will as well.

  9. First, remember that the estate will only hold 50% of the lot as you hold the other 50% as the joint tenant. The assumption is also that the estate holds 50% of the debt. Your father’s attorney is correct that UNLESS the will states otherwise, you inherit the property with the debt. This mean that should she come after the lot, she would receive her share of the debt as well. Therefore, you would not be responsible for debt on property she received. That being said, if the will specifically leaves you this asset, it is likely the court will NOT use it to provide her an elective share. You may request a hearing before the court on this issue. The general rule is that elective share is paid from the residuary estate first and specific devises are only used if the residue of the estate does not contain enough assets to meet the share. As this is a VERY fact specific issue, I recommend that you consult with an attorney who can give you specific advise on your situation after reading the will and looking at the inventory for the estate.

  10. Roger Edwards says:

    Ok. So I obtained a copy of inventory. The lot, his house, 10 acres, and other personal assets are listed. She has submitted the values of real estate as the assessed value from county web site, which is not the same as appraised value, right? The section for liabilities have been left blank, in which she knows and intentionally ommitted the loan balance on the lot. She also ommitted the value of my dad’s 401k in which she is sole beneficiary. To date I am still the only one paying the mortgage, taxes and cc dues for this property. What can I do to give the cts notification that she willfully ommitted the loan balance, or is it worth pursuing, along with forcing her to enter the value of 401k? Could I file a claim against the estate for the payments I made, or not because of the tenants in common title to the property? Am I correct in my assumption that I would still be responsible for paying the loan? My dad signed as primary and I signed as secondary to obtain the loan; if that makes a difference.

  11. Sally Jo says:

    So, my step-dad passed away several months ago. He has an irrevocable trust and several wills. The will was updated during their marriage to leave everything to his brother. I am hoping the Elective Share Statute will help my mother as she quit working to take care of my step-dad over the last year . Any suggestions or advice would be amazing!

  12. Elective Share is definitely appropriate in this case. First, and most importantly, there are time limitations on bringing your Elective Share claim so your mother should NOT delay in filing this claim. Secondly, the Elective Share only applies to assets of the estate. Assets that are held in trust (unless the trust is created BY the will) are likely not part of the estate and therefore the Elective Share will not apply. I would recommend your mother get a copy of the Estate Inventory and consult with a Probate Attorney as soon as possible. Most attorneys will do reduced hourly fees for consults and getting advise based on this specific estate and understanding when the statute of limitations run is an absolute necessity in this situation.

  13. Debbie Werts says:

    My Mother passed age 76 in her will I Was not mentioned to receive anything. I was acknowledged as a daughter only and left nothing. DO I have a chance of breaking the will? She was eccentric and we had not spoken for 13 years. THAT WAS WHEN MY daddy died. THEY wanted everything to go to my brother. I only wanted my share. IS THIS POSSIBLE? WILL THIS BE COSTLY?

  14. Debbie – Thanks for your question. Will contests are extremely complicated and often very expensive. An attorney needs significantly more details to evaluate your case including whether or not the will was prepared by an attorney, who witnessed the will, if the Decedent had any mental health issues, etc. Many attorneys offer consults for potential clients for a reduced fee. I would suggest getting a copy of the will from the Probate Court and checking with any one that knew your mother in the last 12-24 months before her passing to see if any of these might apply. You can read a good overview of grounds to contest a will at

  15. Melanie Williams says:

    Ms. Provence, I have a very difficult situation…First I needed to know statue of limitations for a suit against a bank for losing my friends 401K beneficiary papers. It is a very long story, I have all paperwork naming me and another lady as beneficiaries on his 401k…we may need to talk on phone…

  16. wallace skinner says:

    How does a spouse attain the value of an estate of a deceased person who died with a will. Thank you w/s

  17. Richard Ferguson says:

    My uncle passed away with a will. His wife was left 40 percent of the cash but none of the real estate. The real estate is 3000 acres of farm land and house which was left to my cousin. The majority of the land is in a life estate in my cousins name. There was a hearing and the probate judge ruled she should get elective share. My question is where does the elective share come from, there is not enough cash to cover it and cash was willed to several of us as well. one third of the cash would only be about 40 thousand more than she was willed anyway. Must some of the land be given to her or sold to provide the rest of the elective share?

  18. Thanks for your post. Without a copy of the inventory, the Judge’s Order and the Last Will, I won’t be able to answer your question specifically. However, I can give you some general information that might be useful. An elective share is simply a spouse’s right to receive no less than 1/3 of the deceased spouses assets at death. This exists because in SC it’s public policy that you aren’t allowed to disinherit your spouse (there are exceptions with pre-nuptial agreements, etc).

    If she was already left assets and only $40k is needed to bring her up to the 1/3, the Personal Representative will have to meet that requirement by using other assets of the estate. He/she must first look to the “residue” of the estate (those assets that were not specifically left to anyone). The residue will always be used first before other gifts are reduced. If there is not enough money or assets in the residue to satisfy the $40k, then the PR must use or liquidate other assets. If cash that was given to others must be used, he/she will take the same % of cash from each beneficiary to meet the gift. In other words, the PR can’t take all of the cash from one person and leave the others with their entire gift. All beneficiaries of the same class will be treated equally.
    I hope this helps to answer your question. The real estate complicates matters b/c if it was in fact in a life estate then it is not an estate asset and won’t be used to get the $40k. If; however, it is an asset of the estate the beneficiary of that property may have to chip in funds in order to prevent it being used to satisfy the elective share. Again, these are general rules and each case is different based on the documents, assets and facts. If you feel the elective share is paid in a way that is unfair, you should notify the Personal Representative and seek personal representation on the same.

  19. I’m sorry for the delay (I believe your message got trapped in a spam filter). I hope you’ve received an answer from another source. If not, please email me at Tiffany@ProvenceMesservy.com so that I can get further information. I am unclear if you are asking how you (as the spouse) can determine what the value is or if you’re asking how you can learn the value if you are not in charge of the estate.

  20. Matt Goebel says:

    Dad passed away left wife with 200k life insurance and his will provided for her to live in their home until her death. Total Home value is 325k and is deeded in both names. Total value of estate including 1/2 of house is 1.1 million.
    It’s clear she was not disinherited is elective share which was filed valid?

  21. Matt,

    A spouse is entitled to 1/3 share of an estate. If they receive anything less than 1/3 (whether through the estate or outside transfer such as life insurance) then they are entitled to file an elective share. Without knowing the value of a life estate, it’s impossible to know if she has received her full share but that can easily be determined. There are IRS formulas available to determine the value of an elective share. Taking that value plus the life insurance proceeds should help you know whether or not she has received her 1/3 and therefore whether or not the claim is appropriate. You might consult a probate attorney for a brief consult to help you make this assessment.

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