holy grail not dead Since the administration of an estate of a decedent is conditioned upon the death of that person, it is important to understand if and when a person is legally dead according to the South Carolina Probate Code.

The 2013 amendment incorporated them back into the Probate Code at Section 62-1-507 as part of the Uniform Simultaneous Death Act rules of evidence needed to prove death in South Carolina.

  • The Probate code instructs that death may be established according to the Uniform Determination of Death Act, Section 44-43-460.[1] (S.C. Code Ann. § 62-1-507(1))
  • The Probate Code outlines two documents that are considered prima facie evidence of death: a death certificate or a record or report of death.[2]C. Code Ann. § 62-1-507(2)-(3)

Death may also be established by clear and convincing evidence, including circumstantial evidence.[3] (S.C. Code Ann. § 62-1-507(4)) A persons death may also be presumed if that person has been absent continuously for five years and the absence is not satisfactorily explained after diligent search or inquiry.[4] (S.C. Code Ann. § 62-1-507(5))

Determining Time of Death

Determining the time of death is also very important. The Uniform Simultaneous Death Act requires an individual seeking to elect an interest in property or any other right or benefit that depends on that individual’s survivorship of the death of another, to survive the decedent by 120 hours.[5] (S.C. Code Ann. § 62-1-502(1)). There are exceptions to this requirement, including one that allows a person to instruct that the beneficiaries of their estate should not be under this requirement.[6] (S.C. Code Ann. § 62-1-506). When a persons the survival of an event, including the death of another, is at issue, the person seeking to establish survival must show that by clear and convincing evidence.[7] The Code specifically states that this burden is deemed met when certain documents are presented.[8] (S.C. Code Ann. § 62-1-507(6).

[1] S.C. Code Ann. § 62-1-507(1)

[2] S.C. Code Ann. § 62-1-507(2)-(3)

[3] S.C. Code Ann. § 62-1-507(4)

[4] S.C. Code Ann. § 62-1-507(5)

[5] S.C. Code Ann. § 62-1-502(1)

[6] S.C. Code Ann. § 62-1-506

[7] S.C. Code Ann. § 62-1-503

[8] S.C. Code Ann. § 62-1-507(6)