When a loved one passes away, probate can bring unexpected challenges for surviving spouses. South Carolina law provides important protections to ensure that surviving spouses are not left without support. The elective share petition and the omitted spouse petition are two key statutory remedies that serve to safeguard the rights of surviving spouses in probate proceedings. While similar in purpose, they apply in very different circumstances. Understanding the difference can help you protect your rights or anticipate how an estate may be divided.
Elective Share Petition: A Safety Net Against Disinheritance
Under the South Carolina Probate Code, a surviving spouse has the right to claim an elective share of the deceased spouse’s probate estate. The elective share petition protects spouses from being completely disinherited. Even if the will leaves the surviving spouse little or nothing, the surviving spouse may still claim an elective share equal to one-third of the probate estate. Notably, the one-third share may be satisfied by non-probate assets such as life insurance or financial investments that name the surviving spouse as the beneficiary. The elective share petition must be filed within the later of eight months of the decedent’s death, six months of the will’s probate, or thirty days after certain probate litigation begins. Once the petition is filed, the court determines the value of the share and orders its payment.
See S.C. Code § 62-2-205.
Omitted Spouse Petition: Protecting Spouses Married After the Will
The omitted spouse statute addresses a different scenario. This provision applies when a person executes a will, later marries, but never revises the will to include the new spouse. The new spouse may be treated as an omitted spouse. In those circumstances, unless the will clearly demonstrates that the omission was intentional, or unless the spouse was otherwise provided for outside the will, the surviving spouse is entitled to receive the share of the estate they would have inherited had the decedent died without a will at all. This ensures that a spouse who married after the execution of the will is not inadvertently excluded. The timeline for filing an omitted spouse petition mirrors the timeline for an elective share petition described above.
See S.C. Code § 62-2-301.