Increase in Exempt Property

Exempt property is property that a surviving spouse can protect from creditors of the estate. By allowing exempt property, the S.C. Code essentially guarantees a spouse that he/she will be able to maintain certain household furniture, automobiles, furnishings, appliances, and personal effects despite the amount of debt owed by the estate. The South Carolina Probate Code §62-2-401 was amended in January of this year to increase the personal property exemption from $5,000 to $25,000 making this a much greater protection. If there is no surviving spouse, minor or dependent children of the decedent are entitled jointly to the same value; however, adult children do not get the same benefit.

There are a few important points to remember if you wish to claim this exemption as a spouse or on behalf of your client.

  • This right is not automatic. You must file a claim form (435ES) to take advantage of this code section.
  • You must file your claim within a certain time period. You have eight (8) months from the date of death or six (6) months from the probate of the decedent’s last will to claim the exemption.
  • The amount claimed is subtracted from, not added to, any benefit passing to the surviving spouse; therefore, it is valuable only as a means to protect the estate from creditors – not as a way to increase their share.
  • The claimed property takes priority over all other claims other than funeral expenses and costs of administration (including attorney’s fees).
  • These rights are in addition to any right of homestead and personal property exemption otherwise available.
  • Any surviving spouse (or minor or dependent children) who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of this section.
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