South Carolina marriage laws recognize that when you marry, you bring important changes to the way you live and manage your money.
One relatively small area that many people fail to consider is how marriage might impact their existing estate plan, including their will.
It is important that you understand if marriage does override a will that your assets are distributed as you want them to be.
I was recently asked about a South Carolina law on how a spouse’s rights affect an existing will, and many people may be shocked to know that they do not need to change their will after marriage.
In this blog post, you will learn about the relationship between marriage and a will in South Carolina as well as what you can do to safeguard your assets and receive the proper legal treatment for your wishes.
South Carolina’s laws of wills and marriage
In South Carolina, a will is a written instrument that sets out how a person’s property will be divided when he or she dies. However, marriage does play a big role in the validity and enforceability of an existing will.
South Carolina law has some provisions that may cause confusion if, for example, a person made a will and has not mentioned his or her spouse: the spouse will have rights to the property of the deceased.
There are special rules in the state for the protection of spouses against being excluded by wills if it was not their intention to do so.
This is where the principle of ‘elective share’ is applied where the surviving spouse is entitled to take a share in the estate of the deceased partner.
These laws are meant to protect the rights of the surviving spouse and the intentions of the deceased as articulated in the will and thus any couple especially if they are newly wed should review their estate planning.
Familiarity with such legalities will enable you to set your assets and property division appropriately as per your desires and also protect your wife’s legal entitlements.
South Carolina’s Elective Share Rights
Elective share rights are one of the primary legal remedies available to a surviving spouse in South Carolina to prevent him or her from being disinherited either deliberately or inadvertently.
The elective share is in fact a legal right by which the surviving spouse is able to take a certain percentage of the property of the deceased spouse, as specified by law, regardless of the will left behind.
According to South Carolina law elective shares most often allow the surviving spouse to take up to one-third of the probate estate of the deceased spouse.
This provision seeks to ensure that in the event of writing a will, a spouse cannot be provided with no share as may be provided by writing a new will.
The elective share serves the interest of the surviving spouse and makes it possible to have an equal distribution of the assets. However, the reader should be aware that some of the assets like those held in trust or jointly with the tenancy by the right of survivorship are not subject to the elective share claim.
That is why, it is necessary for the residents of South Carolina to understand how the elective share works and how it is connected with the other instruments in the field of estate planning.
Effect of Marriage on an Existing Will
Marriage can also affect an existing will in South Carolina; more so if the will was made before the marriage occurred. In particular, state law shields a testator when he or she marries after preparing a will and fails to revise it to include the new spouse.
This means that the surviving spouse may still be entitled to an inheritance even if he or she has not been mentioned in the will.
South Carolina has elected share statutes that enable a surviving spouse to take a certain percentage of the deceased spouse’s estate. However, where the will does not show the marriage or provide for the new spouse as far as inheritance is concerned this may lead to problems when probating the will.
In such cases, the surviving spouse may challenge the will as he or she is entitled to an heirship share as the spouse which in most times results in protracted and expensive litigation.
Also under South Carolina law is the “pretermitted spouse” – a spouse who was married to the decedent at the time the will was made but receives nothing under the will. If the will was executed before the marriage or during the marriage but the omitted spouse could not reasonably have been expected to have known of the existence of the will at the time it was made, the pretermitted spouse may have a claim against the estate.
Prenuptial and Postnuptial Agreements
Marital Property Agreements help a lot in the steps of estate planning for the couple as they help in establishing the way the property of the married couple should be divided in case of divorce, death of either partner, or otherwise in South Carolina.
These contracts enable couples to specify certain conditions relating to their property and financial regime, thus preempting some of the provisions of South Carolina’s inheritance laws as well as the elective share rights of the surviving spouse.
These are legal contracts prepared before marriage and normally indicate how the couple’s property shall be divided in the event of a divorce or at the death of one of the parties. When drawing up a prenuptial agreement there can be a provision that one of the partners will not be entitled to an elective share in the other partner’s estate.
It, therefore, becomes apparent that postnuptial agreements are prepared at a time when the couple is already married. As with prenuptial agreements, they can include provisions as to property division and elective share renunciation.
Such arrangements have to be negotiated and entered into willingly and the parties’ status of assets has to be disclosed, and it must be in writing to be legal. When properly drawn, pre and post-nuptial are useful in providing effective estate planning for the couple and would reduce the possibility of disagreements on the couple’s wishes.
However, it is always recommended to seek help from a professional lawyer when drafting such agreements to make sure they meet the legal requirements of the South Carolina state and serve your purpose to the full.
Divorce and its impact on a Will
While marriage brings new rights for a surviving spouse, divorce erases many of them and usually revokes some of the provisions of a will. In South Carolina, as soon as a man and wife officially dissolve their marriage in a legal divorce litigation, the provisions of a will that provide for the former spouse are generally considered to be automatically severed.
This means that if the deceased had left the property or nominated his or her former spouse to act as an executor of the will then the provisions would be void upon divorce.
However, the revocation is limited to only that clause that has reference to the ex-spouse. Other parts of the will will remain as they are, which may cause other or perhaps even undesired distributions if the will is not altered.
For instance, if an ex-spouse was appointed as a beneficiary of a certain item, property, or cash, then that appointment would not hold any water. In such cases, the asset would go to the taker in accordance with the residual clause of the will or through the intestate succession if the will does not name another beneficiary.
Thus, anyone experiencing a divorce should reconsider and revise the whole estate plan, including a will, trusts, power of a divorce attorney, and other documents where the beneficiary is stated, in order to make changes connected with the new status.
Measures to be Taken when Planning for an Estate after Marriage
Marriage is another major life change, for which it is often necessary to conduct a global revision of your estate plan. Here are key steps you should take to update your estate planning documents after tying the knot in South Carolina:
Update Your Will
If you already have one, you need to update it to accommodate your new spouse. This eliminates some legal issues and helps your spouse get what you want them to get after your demise.
If you do not have a will now it’s time to make one to ensure your wishes are understood and followed.
Think of Joint Tenancy in Property
Including your spouse as a joint owner of some of the assets for instance accounts and properties makes it easier to deal with the asset in the event of death.
Tenship with rights of survivorship gives your spouse rights of automatic ownership of the asset without the need to go through the probate process.
Discuss Elective Share Rights
Learn about the South Carolina elective share laws which entitle a surviving spouse to a share of up to one-third of the probate estate of the deceased spouse.
Ask yourself if you require a prenuptial or postnuptial agreement to deal with or relinquish these rights especially if you are wealthy or have children from a previous partner.
Establish or Update a Trust
Establishing a trust can enable better management of the assets, and can eliminate the probate process.
If you already have a trust, revise it and add your spouse or make other changes that reflect your current preferences.
Seek advice from an Estate Planning Attorney
Because of the potential for disputes in estate planning, and the legalities involved, it is advisable to seek advice from an estate planning lawyer.
They can assist you in understanding the laws of South Carolina, review and draft the documents that will be legally valid for you, and give you specific recommendations to defend the interests of both you and your spouse.
Do not take a chance with your estate planning. Max Hyde Law Firm is here to help you! Call us at (864) 804-6330 for a free consultation. The attorneys at Max Hyde Law Firm can explain how the law of marriage applies in your state and assist you with the process if you need to change your will.
