Marriage is a significant event for two people who have chosen to commit to each other for life. However, it is also a legal process that entitles spouses to some or all of their partner’s assets, leading to profound legal implications applicable even after the death of the other.
One common question spouses may have is whether marriage can override a will in South Carolina. In other words, can a spouse contest a will if it effectively disinherits them or leaves them a negligible portion of the estate? Does marriage override a trust or will in South Carolina? Those interested in estate planning should understand how marital status and estate planning instruments such as trusts and wills interplay.
Elective Share Law
Elective share laws determine the proportional amount a surviving spouse is automatically entitled to from their deceased spouse’s probate estate. Various states have varying proportions that the length of the marriage may determine. In South Carolina, elective shares are fixed at a third of the deceased spouse’s probate estate, regardless of the marriage’s length.
If a surviving spouse receives less than a third of the deceased’s probate estate, they can file a claim for an elective share instead of accepting what was left to them in the will. However, elective shares are not automatic; the surviving spouse must actively claim it, usually within a specific time frame after the decedent’s death.
For example, John passes away, and his will leaves a negligible portion to his wife, Jane, while most go to his children from a previous marriage. Jane feels this is insufficient to provide for her, so she files a claim in probate court for her elective share. If the court determines that she is entitled to ⅓ of John’s probate estate, this will be awarded to her regardless of John’s will.
However, a surviving spouse cannot receive their elective share and other items they’ve inherited outside of those in the will. The estate is not limited to what is bequeathed in the will and also includes:
- Property passed through intestacy laws;
- Valid claims from creditors;
- Funeral expenses;
- Assets in a revocable trust, retirement plans, life insurance, and other similar assets where the surviving spouse is the beneficiary;
- Homestead allowance;
- Personal property claims;
Returning to the example, Jane may have received a small share from John’s will. However, what if she also received benefits from a sizable trust and John’s life insurance? Considering all these, she was left more than ⅓ of the probate estate and may not be eligible for an elective share from his will.
Pre-nuptial and Post-nuptial Agreements
Pre-nuptial and post-nuptial agreements can also play a crucial role in estate planning. These agreements allow couples to outline their intentions regarding asset distribution and ownership in the event of death or divorce.
In South Carolina, these agreements can be used to waive the right to an elective share. However, the waiver must be made knowingly and voluntarily. Both spouses must have independent legal counsel and fully disclose their income, debt, and assets if they want their agreement to be valid.
Impact of Marriage on Existing Wills
Understanding elective shares is crucial for creating wills and estate plans. The testator must recognize that their surviving spouse has a legal right to claim at least a third of their probate estate. Otherwise, if they provide less than a third to their spouse, their will’s terms could be overridden in favor of their spouse’s claim.
One variant of the question “Does marriage override a will in South Carolina?” concerns wills that existed before marriage. If one person makes a will naming their heirs, marries, and forgets or does not update their will, is the will still valid, or does the marriage entitle the spouse to certain assets?
In South Carolina, marriage does not automatically revoke a previously executed will. However, due to elective share laws, the surviving spouse may still be entitled to a third of the estate, even if they are not mentioned in the will.
Updating Wills After Marriage
Given the significant impact marriage can have on estate distribution, it is highly recommended that those with wills have them updated after marriage. This ensures that an individual’s current wishes are accurately reflected. This can also prevent potential legal battles between the surviving spouse and other beneficiaries. Additional reasons to keep an updated will include:
- Incorporate Your Spouse into Your Estate Plan: Keeping an updated will ensures that the surviving spouse is included in the estate plan and what portion they inherit.
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- Reflect Changes in Beneficiaries: After marriage, priorities may shift on who should be a beneficiary, such as the spouse and any future children.
- Reflect Changes in Beneficiaries: After marriage, priorities may shift on who should be a beneficiary, such as the spouse and any future children.
- Address Elective Share Rights: A surviving spouse has the right to a third of the estate; an updated will can potentially avoid disputes. Additionally, a properly updated will consider pre-nuptial or post-nuptial agreements that waive elective share rights.
Comprehensive Estate Planning and Experienced Legal Counsel at Wiles Law Firm
Does marriage override a will in South Carolina? Not necessarily, though a will’s terms could be overridden to ensure a surviving spouse claiming their elective share receives at least a third of their deceased spouse’s probate estate. To ensure a will is followed, it’s best to seek experienced guidance to ensure one’s wishes are upheld, and properties are distributed as expected.
Wiles Law Firm empowers clients through estate planning and guidance through the complex intricacies of estate law.
If you would like to discuss your estate plan or seek guidance during probate, we invite you to schedule a FREE consultation. Our experienced team can discuss your case and provide you with smart solutions to preserve your legacy or ensure you receive the inheritance you are entitled to.