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Surprise!  You Cannot Easily Disinherit Your Spouse in South Carolina

In South Carolina, it is very easy to cut out your brothers and sisters or even your very own children and grandchildren in your Will or Trust. However, in SC and most states, you cannot intentionally disinherit your spouse unless your spouse agrees to receive nothing from you in a prenuptial or postnuptial agreement.

In SC, your spouse is generally entitled to 1/3 of what you own, known as the “elective share.” There are some exceptions and the rules can get a little tricky in arriving at satisfying the 1/3 amount. However, your spouse can always waive their right to this property but, as you can imagine, that’s not the easiest conversation to have, especially if you wait until after you’re married.

It’s not quite this simple but if you have been left less than what you think you are entitled to, to receive the proper amount you must file documentation with the court within the later of:

  • 8 months after the date of death; or

  • 6 months after probate of the decedent's Will

Important: The Laws of the State Where the Person Died Control !

It’s important to remember that the laws of the state where the person died control in regards to this issue and they can vary widely:

  • In some states the surviving spouse's right to inherit is based on how long the couple was married.

  • In some states the surviving spouse’s right to inherit is based on whether or not children were born of the marriage.

  • In some states the surviving spouse’s right to inherit is based on the value of assets included in the deceased spouse’s probate estate

  • State laws also vary widely regarding the time limit a surviving spouse has to seek their inheritance rights, which can range anywhere from a few months to a few years.

Act quickly! If your spouse has attempted to disinherit you, you must seek legal advice as soon as possible before state law bars you from enforcing your rights. Only an experienced estate planning attorney can help you weigh all of your options and protect your interests as a surviving spouse.

Contact Hamrick Law with any questions or concerns about this important estate planning issue!

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