The Widow's Legal Rights in South Carolina
By Bernadette A. Safrath
South Carolina law provides a surviving spouse with the right to inherit from her deceased spouse's estate. An estate includes all property the decedent acquired during his lifetime. If a decedent had a will, the widow receives any bequest from the will. If there is a will, but the spouse is not included, she will still receive an inheritance in accordance with South Carolina's "elective share" laws. If a decedent dies without a will, the widow will inherit based on South Carolina's laws of intestate succession.
When a decedent dies without a will, the estate passes to its heirs according to South Carolina's intestate succession laws. A widow is the first person entitled to inherit from the estate. If the decedent did not have children, the surviving spouse inherits the entire estate. However, if the decedent had children, the surviving spouse is entitled to one-half of the estate, while the decedent's children inherit equal shares of the remaining half.
If a decedent's will is prepared in accordance with South Carolina law, his widow has the right to any inheritance in the will. South Carolina requires the maker of a will to be at least 18 years of age and "of sound mind" (mentally competent) in order to make a will. The will must be handwritten or typed and signed by the decedent. Two witnesses must be present when the decedent signs his will.
The elective share is a widow's inheritance, as permitted by state law, when her husband leaves her out of his will. A disinherited widow must petition the court for this elective share within eight months of her husband's death or six months after the will is filed with the court, whichever occurs last. Once the court verifies the surviving spouse was not included in the decedent's will, the court will award her the elective share of one-third of the estate.
Certain assets in an estate cannot be left in a will and are not part of the spouse's elective share or intestate inheritance. This is because that asset already has a designated beneficiary who cannot be changed in the will. If a widow is the beneficiary, she has the right to inherit. For example, if the couple jointly owned the marital residence, the widow will inherit the home. Any jointly owned property has a right of survivorship that permits the surviving owners to automatically inherit the property in equal shares. Additionally, any assets placed in trust before the decedent's death automatically pass to the beneficiaries of the trust.
A surviving spouse is entitled to inherit from a decedent's estate only if they are married at the time of the decedent's death. If they are divorced, any bequests to the ex-spouse in a will are considered void. Additionally, a divorce decree terminates a spouse's right to inherit under intestacy laws or by elective share.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.