An elective share is a proportional amount of a decedent’s probate estate that their surviving spouse is automatically entitled to under state statute. The purpose of an elective share is to protect the surviving spouse from being completely disinherited or treated unfairly in their deceased spouse’s will. Each state sets their own guidelines in regard to the amount of the share a surviving spouse is entitled to. For instance, many states implement a sliding scale in which the amount increases depending on the length of the marriage. Although claiming an elective share is a statutory right, the surviving spouse must properly and timely claim the share according to your state’s law or else the claim is barred. If the claim is barred, the surviving spouse no longer has the right to receive their share of the estate, which can cause problems if the spouse is disinherited by will. An elective share may also be waived through a writing signed by the spouse.
What is the Elective Share in South Carolina?
In South Carolina, the elective share statute provides that the surviving spouse has the right to claim 1/3 of the deceased spouse’s “probate estate.” Unlike the North Carolina elective share, the South Carolina elective share is fixed at 1/3 and does not increase over time based upon the length of marriage. South Carolina law applies to estates of South Carolina residents.
Valuation of Probate Estate and Elective Share Offsets
A surviving spouse may claim an elective share if he or she is left less than 1/3 of the deceased spouse’s probate estate. “Probate Estate” is defined for the purposes of elective share as 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).
However, the surviving spouse does not receive an elective share on top of any other property the deceased leaves them because this property is factored into the total amount of the spouse’s share as an offset. In calculating the elective share, the surviving spouse will be charged with probate assets received through the decedent’s Will or Intestacy, as well as non-probate transfers received as a result of the deceased spouse’s death, including:
- Assets left in a revocable living trust with the spouse as a beneficiary;
- By a homestead allowance;
- By an exempt personal property claim (up to $25,000 pursuant to S.C. Code 62-2-401);
- Retirement plans and annuities naming the surviving spouse as beneficiary; and
- Life insurance naming the surviving spouse as beneficiary.
See S.C. Code 62-2-207
Furthermore, assets in a revocable living trust of the deceased spouse (are not part of the decedent’s probate estate) but are generally counted as such when calculating the spouse’s elective share if the trust meets the conditions set forth in 62-7-401(c). On the other hand, a deceased spouse can partly avoid the the elective share by leaving property to the surviving spouse in a qualified terminable interest property trust (QTIP trust). In a QTIP trust the surviving spouse would receive the entire trust income for life but would be charged with the entire value of the trust property subject to this income interest.
Time Limits to File Petition for Elective Share
To claim an elective share, the surviving spouse must exercise their right to the elective share during their lifetime by filing a petition in the deceased spouse’s estate within:
- 8 months after the date of the deceased spouse’s death;
- 6 months after probate of the deceased spouse’s will; or
- 30 days after the surviving spouse is served with a summons and petition to set aside informal probate, or to modify/vacate an order for formal probate of the decedent’s will;
Whichever is later.
Voluntary Waiver of Spousal Elective Share
The right to an elective share may be waived, in whole or in part, before or after marriage through a written contract (such as prenuptial agreement, elective share waiver, or separation agreement) voluntarily signed by the party giving up their right to the share only after there have been fair and reasonable disclosures made in writing by the non-waiving spouse as to their financial assets. A detailed and accurate financial statement signed by both spouses is highly recommended to prove the disclosure requirement to make the waiver enforceable or it could be set aside and declared unenforceable by the probate court.
Considering filing a South Carolina Elective Share Claim?
If you have questions about how the South Carolina elective share will affect your estate plan or are a surviving spouse considering filing an elective share claim, contact us today to speak with an experienced South Carolina probate lawyer. The valuation complexities along with strict time limits for filing can makes this a legal process you do not want to tackle alone.