When someone dies, the surviving spouse usually receives a substantial portion of the assets – but this isn’t always the case. Unlike other relatives and friends, spouses have specific inheritance rights under state law. This is called elective share in most states.
The elective share is a portion of the decedent’s probate estate that the surviving spouse is entitled to under state law. The purpose of an elective share is to protect the surviving spouse from being completely disinherited or treated unfairly in their deceased spouse’s will.
One important catch is that the elective share is an either-or choice. A surviving spouse can choose to either 1) accept what they are granted in the will, or 2) take an elective share. There is no double dipping!
Each state has their own rules governing elective shares and the procedures for claiming it. In South Carolina, the spouse is entitled to “one-third of the decedent’s probate estate” (§ 62-2-201). “Probate Estate” is defined for the purposes of elective share as the “decedent’s property passing under the decedent’s will plus property passing by intestacy, reduced by funeral and administration expenses and enforceable claims” (S.C. Code 62-2-202). In calculating the elective share, the surviving spouse will be charged with probate assets received through the decedent’s Will or Intestacy, as well as non-probate transfers received as a result of the deceased spouse’s death (such as some trusts, insurance policies, and retirement plans that name the spouse as a beneficiary) (see § 62-2-207).
Although a spouse is entitled to exercise an elective share, this is not an automatic process. To claim elective share, a spouse must follow certain steps within the timeframe established by law. Under SC law, the time limit is the later of either: “(1) eight months after the date of death, (2) six months after the informal or formal probate of the decedent’s will, or (3) thirty days after a surviving spouse is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of decedent’s will.” (§ 62-2-205).
The elective share can also be waived at any time (before, during, or after the marriage), provided the waiver is voluntary and reasonable disclosures were made in writing. A detailed and accurate financial statement signed by both spouses is highly recommended to prove the disclosure requirement to make the waiver enforceable or it could be set aside and declared unenforceable by the probate court.
Furthermore, assets in a revocable living trust of the deceased spouse (are not part of the decedent’s probate estate) but are generally counted as such when calculating the spouse’s elective share if the trust meets the conditions set forth in 62-7-401(c). On the other hand, a deceased spouse can partly avoid the elective share by leaving property to the surviving spouse in a qualified terminable interest property trust (QTIP trust). In a QTIP trust the surviving spouse would receive the entire trust income for life but would be charged with the entire value of the trust property subject to this income interest.
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