Spouse Omitted From Will – Remedy

Sometimes when one spouse dies he or she discovers that the deceased had a will but that he/she was not included in the will.    This might be through oversight, e.g. due to this being a second marriage, or it might be on purpose.  In either case South Carolina has a remedy for a spouse that is left out of his/her deceased spouse’s will.  It does not matter whether the will is silent as to the spouse or specifically states “I am not leaving my spouse anything” or “I leave my spouse $1.00 only.”

The South Carolina Probate Code provides for an omitted spouse.  The omitted spouse is entitled to a one-third (1/3) share of the deceased’s probate estate.  This is not necessarily everything the deceased owned because some property may pass outside the estate.  Examples are a joint bank account or real property held as joint tenants with right of survivorship.  On the other hand if the omitted spouse is the joint party on the bank account or property title, those items will not count as part of her spousal share.  Also, the spousal share is based on the net probate estate after certain costs, expenses and claims are paid.  Some of these are valid claims against the estate, costs of last illness, cost of maintaining the estate, attorney fees, etc.

This spousal share provision also applies if the deceased only left the surviving spouse a very small inheritance.  The surviving spouse is entitled to either what was left to him/her in the will or the statutory spousal share, whichever is greater.

One can waive his or her right to the spousal share by a valid, signed document.  The most common instance of doing this is when people who are separated enter into a Marital Separation and Property Settlement Agreement.  This type of Agreement usually contains a waiver by which each party gives up the right to claim his/her spousal share from the other party.  On a final note there is a definite time limit to file for the spousal share after which the omitted spouse loses the right to claim it.  It must be filed within eight months after the death of the decedent or within six months after the will is filed, whichever is later.