Second marriages often bring joy, companionship, and a fresh start. But they also introduce complex legal and financial considerations, especially when it comes to estate planning. In South Carolina, failing to update your estate plan after remarriage can lead to unintended consequences, including disputes between the members of your blended family, like your surviving spouse and children from a prior relationship. Understanding the default marital rights under South Carolina law and how they can be modified is crucial to protecting your legacy and the inheritance your loved ones should receive.
What Rights Does a Surviving Spouse Have?
Under South Carolina law, a surviving spouse is entitled to certain statutory rights in their deceased spouse’s estate, regardless of the distributions described in the Will. These rights, described in S.C. Code Ann. § 62-2-204, include the following:
- Elective Share: The surviving spouse may claim up to one-third of the decedent’s probate estate, even if they are entitled to less or nothing at all through the provisions of the Will.
- Homestead Allowance: The surviving spouse is entitled to real and personal property exemptions enumerated in S.C. Code Ann. § 15-41-30, which exempt from attachment, levy, and sale under any mesne or final process issued by a court or bankruptcy proceeding. Scholtec v. Estate of Reeves, 327 S.C. 551 limited these exemptions to (1) residential properties; (2) household furnishings; (3) jewelry; (4) professional materials; and (5) professional prescribed health aids; excluding the remaining eight found in the statute.
- Exempt Property: The spouse may also claim certain personal property items, such as household furnishings, automobiles, furnishings, appliances, and personal effects, up to a value of $25,000[1].
A spouse has these rights automatically unless the parties agree to waive them through a valid legal instrument before one of them dies. That being said, the rights must be asserted with the Probate Court timely once the deceased spouse’s estate is opened, otherwise, they are lost.
Waiving Marital Rights
South Carolina law allows spouses to waive their rights to the elective share, homestead allowance, and exempt property through a written agreement. This is often referred to as a waiver, which can be executed before or after the marriage.
Pursuant to S.C. Code Ann. § 62-2-204, the waiver must be in writing, voluntarily signed, and with a fair and reasonable disclosure of the other party’s property and financial obligations. These waivers are often found in prenuptial or postnuptial agreements, which often cover a variety of other topics, like financial responsibilities of the parties and asset division.
What Does Divorce Automatically Revoke?
Many people assume that a divorce automatically revokes all rights and designations made in favor of a former spouse. While this is generally true under South Carolina law, there are important exceptions.
According to S.C. Code Ann. § 62-2-507, a divorce or annulment revokes or severs:
- Any revocable disposition or appointment of property to the former spouse.
- Any nomination of the former spouse in a fiduciary role (e.g., personal representative, trustee).
- Joint tenancy with right of survivorship unless otherwise specified.
Note: a decree of separate maintenance does not revoke these rights. If the couple remains legally married, even if living apart, the surviving spouse retains their statutory rights unless a court order or contract explicitly terminates them.
Why This Matters in a Blended Family
Estate planning is extremely individually tailored when blended families are involved. Without a comprehensive, updated estate plan:
- You or your new spouse may intentionally or unintentionally disinherit your children.
- Your children may challenge your spouse’s rights, leading to costly litigation.
- Assets may be distributed in ways that contradict your intentions.
Protecting Your Intentions
To ensure your estate plan reflects your wishes and protects all parties involved, consider the following steps:
- Update Your Will and Trusts: Make sure your documents reflect your current marital status and intentions.
- Execute a Prenuptial or Postnuptial Agreement: Clearly outline what each spouse is entitled to and waive statutory rights if desired.
- Review Beneficiary Designations: Update life insurance, retirement accounts, and payable-on-death accounts.
- Consider a Revocable Living Trust: This can help avoid probate and provide more control over asset distribution.
- Consult an Experienced Attorney: Estate planning for blended families requires careful legal guidance to avoid pitfalls.
Estate planning is not just a legal formality—it’s a vital step in safeguarding your legacy and ensuring peace among your loved ones. South Carolina law provides default protections for surviving spouses, but these can be modified through proper planning according to your unique family and wishes. Whether you’re newly remarried or have been in a second marriage for many years, now is the time to review your estate plan and make sure it aligns with your goals.
If you have questions about how South Carolina’s probate laws affect your estate or need help drafting a comprehensive plan, contact our office today. We’re here to help you navigate the complexities of estate planning with clarity and confidence.
