Omitted Spouse

While the South Carolina elective share provides the surviving spouse the right to claim 1/3 of the deceased’s spouse’s probate estate, an additional statute in the South Carolina Probate Code provides additional protections for a surviving spouse when the deceased spouse executed a Will prior to their marriage but, for whatever reason, did not update his or her Will to include the spouse. 

The surviving spouse in this situation is referred to as the “Omitted Spouse” in South Carolina Probate Code Section 62-2-301. An Omitted spouse is entitled to the intestate share of the deceased spouse’s estate that he or she would have received as if there had been no Will, which is greater than the elective share.

Example of an Omitted Spouse scenario:

John prepares a Will on December 1, 2011 leaving his entire estate to his two children. John gets married to Katie on September 13, 2016 but never updates his Will. John dies October 3, 2018 in South Carolina and is survived by Katie and his 2 children. Katie can file a Petition with the Probate Court for her share as the Omitted Spouse, which would be ½ of John’s estate. If John did not have children, then Katie would receive all of John’s estate as the Omitted Spouse.

Important Exceptions to Omitted Spouse Share

• The Omitted spouse share would not apply if it appears from the deceased spouse’s Will that the omission was intentional (ie. John includes a recital in his Will that he intentionally disinherits Katie)
• The Omitted spouse share would NOT apply if the surviving spouse was provided for by transfers outside of the Will and evidence is shown that it was the testator’s intent for the non-probate transfer to be in lieu of a testamentary provision in the Will.
• The Omitted spouse share would NOT apply if the surviving spouse does not timely file a petition for the share within the later of:
  1.  8 months from the date of death;
  2.  6 months after probate of the decedent’s will; or
  3. 30 days after the omitted spouse is served with a summons and petition to set aside an informal probate or modify/vacate an order for formal probate of the Will.
• The Omitted spouse share would NOT apply if the decedent was domiciled in North Carolina. Not every state has an Omitted Spouse statute, including North Carolina, which has an elective share based upon the length of marriage.

What to do if you are an Omitted Spouse?

It is important to remember that the share for an omitted spouse is not automatic, so a surviving spouse who was not named in the Will should consult with a South Carolina probate lawyer to discuss whether the available options (including the omitted spouse statute and elective share statute).  Do not delay discussing this matter with your local estate attorney because the statute of limitations is very short to file a claim as the omitted spouse.

Avoid the Omitted Spouse Share by Updating your Will after Marriage

Don’t forget about your spouse! Marriage is often a triggering event for couples to prepare their Wills, Trusts, and other estate planning documents. However, if you had a Will prepared prior to your marriage, then it needs to be updated after your marriage, or you could unintentionally leave your spouse in a worse position then if you had no Will at all.

If you are recently married and need to update your Will, contact us today at (803) 351-3597 or in**@***********aw.com to set up a free initial consultation with a South Carolina estate planning lawyer in our Fort Mill office.