Posted by the Berkeley, Dorchester, and Charleston Probate and Estate Attorneys at Anderson & Schuster, Attorneys at Law, LLC.
As Charleston probate and estate attorneys, we are sometimes asked if a person can disinherit their spouse in their Last Will and Testament. While you can disinherit everyone else, including your children, it is very difficult to do so to your spouse.
The South Carolina Probate Code allows spouses a right to claim their elective share if the Will of the deceased, executed during their marriage, leaves them with less than the elective share. The South Carolina elective share is one third of the probate estate. So how does a spouse calculate the amount they are owed under the elective share statute? The one-third share is taken after all costs of probate administration and payments to estate creditors are made. Then, any amount that was left to the spouse in the Will must be deducted from the amount owed under the elective share.
A couple of things to note about the South Carolina elective share statute. It usually only applies when there is a Will executed during the marriage. If there is no Will filed with the Probate Court, South Carolina intestacy laws apply. If the Will was executed before the marriage with no mention of the spouse, a different set of rules may apply.
A disinherited spouse must file for the elective share with the Probate Court. It is not automatically awarded. There are deadlines in which the elective share must be claimed, and it must be done within the disinherited spouse’s lifetime. In order to make sure the elective share is properly filed, we strongly recommend employing the services of a probate and estate lawyer.
The elective share can be waived. Before you decide to waive these rights, we advise that you talk with a Charleston probate and estate attorney to discuss the implications of such a waiver.
Our Charleston Probate and Estate Lawyers handle probate and estates in Charleston, Berkeley and Dorchester Counties. Our probate lawyers can help to ensure that your loved one’s estate is handled properly and efficiently. Please give our Charleston probate attorneys a call today to discuss any probate and estate issues you may have. Oftentimes any fee incurred by employing our probate attorneys can be paid from the assets of the estate.