Divorce and Estate Planning – Elective Share

If you are considering a divorce or are in the process of a divorce, you may want to take steps to protect your estate before the divorce is final. A spouse is entitled to a portion of their spouse’s estate regardless of how the estate is gifted in a will. In South Carolina, the surviving spouse may receive one-third (1/3) of the deceased spouse’s probate estate pursuant to South Carolina Code Section 62-2-101, et sec. The public policy behind the statute is to prevent a surviving spouse from being disinherited unfairly.

If the surviving spouse is left less than 1/3 of the spouse’s probate estate, then the surviving spouse can claim an elective share. The probate estate is the “decedent’s property passing under the decedent’s will plus property passing by intestacy, reduced by funeral and administration expenses and enforceable claims.” S.C. Code § 62-2-202.

Prior to calculating the elective share, the surviving spouse will receive a “credit” for non-probate assets received such: as life insurance proceeds, retirement plan or annuity funds, an exempt personal property claim, a homestead allowance, or assets in a qualified living trust naming the spouse as a beneficiary. This is to ensure that the surviving spouse is truly disinherited, and preventing the surviving spouse from receiving an elective share in addition to other property received.

Once you are divorced, your ex-spouse is no longer entitled to an elective share. Yet, any divorce settlement agreement should include language waiving an interest in either spouse’s estates. In the meantime, you can take steps to ensure little to no assets remain in your probate estate prior to your divorce that would be subject to the elective share.

Contact the experienced attorneys at the Hyde Law Firm, P.A. to discuss how a divorce could affect your estate planning, 864-804-6330.