I am pleased to present the following post from my law partner, Paul MacPhail:
One question that is frequently asked by our clients is “If I die before I’m divorced, will my spouse get anything from my estate?” Let’s take a look…
Consider this example. The wife filed for divorce in June and the divorce was granted on September 27, 1996. The husband died on October 7, 1996, prior to the divorce order being signed and filed with the Clerk’s Office on October 11, 1996. The South Carolina Court of Appeals addressed this situation in Hatchell v. Freeman, and it held that the wife was still the husband’s spouse for the purposes of inheriting from his estate. As a result, the wife was able to make a claim against the estate of the husband for her intestate share, which, if there were no surviving children, would be 100 percent!
What happens in other scenarios? Subject to some exceptions, the following would apply:
- In the above situation, if the husband died after the filing of the divorce decree, the wife would no longer have been a surviving spouse, and she would not have had any right to inherit from his estate, even if named in his will. See S.C. Code Section 62-2-507 (revocation of disposition by divorce or order terminating property rights) and S.C. Code Section 62-2-802 (effect of final orders: Divorce Decree or Decree of Separate Maintenance).
- What if divorcing party makes a new will during the divorce disinheriting spouse and then dies before the divorce decree (or decree of separate maintenance) is filed in the clerk’s office? The surviving spouse would be entitled to an elective share of one-third of spouse’s estate. See S.C. Code Section 62-2-201 (elective share statute).
- What if the deceased spouse’s will pre-dates the marriage and doesn’t mention his/her spouse? Here, the surviving spouse would receive 100% of the estate if there are no children of the deceased spouse, or 50% if there are children. See S.C. Code Section 62-2-301 (omitted spouse provision).
- Are there ways to avoid the consequences of these laws? Yes, there are steps that you can take to protect your heirs and avoid enriching your estranged spouse. You should consult with your family lawyer and/or estate planning attorney to find out the steps you can take in your particular case.
Disclaimer: The above summaries of law are subject to exceptions. Your particular situation may involve facts that would allow for a different result. Consult with an attorney for advice.