What do you do if you find yourself a widow(er) and come to find out that your spouse did not mention you in his/her Last Will?

To answer the question, you need to first determine whether the Will was executed before your date of marriage or after. If it was executed before your marriage, you are termed an omitted spouse, and pursuant to S.C. Code Section 62-2-301, you are entitled to receive your intestate share in the estate, notwithstanding that the Last Will says otherwise. (Click here to determine what your intestate share would be.)

If you are an omitted spouse, you must file a written claim with the Probate Court and to the personal representative within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires. You will not be considered an omitted spouse if, however, the will appears to have intentionally omitted you, or your spouse has otherwise provided for you through other assets, such as life insurance, joint bank accounts, etc.

If you are not an omitted spouse under the law, you have the right to elect to receive a one third share of the probate estate, notwithstanding that the will says otherwise. (S.C. Code 62-2-201). The probate estate is defined to include all assets passing by will plus by intestacy, less funeral and administration expenses, and claims. (S.C. Code 62-2-202).

For elective share purposes, the probate estate will also include assets held in a revocable trust. Seifert v. Southern Nat. Bank of South Carolina, 305 S.C. 353 (1991). This is so because grantors of revocable trusts tend to remain in control of their assets, often serving as the trustee and beneficiary during their lifetimes, with full power to revoke the trust or otherwise direct where the assets will go. Such arrangments are considered illusory (for elective share purposes only) and will not be protected from the surviving spouse’s right of election.

To make a claim for elective share, the surviving spouse, his attorney in fact (or a court in the case of a protected person) must, during the surviving spouse’s lifetime, file a written petition for elective share with the Probate Court and the personal representative, within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires.

Now that we have gone over some of the basics of the omitted spouse and the right of election, tune in next time for a discussion of what some unscrupulous people will do to be able to claim an elective share in an estate, and why sometimes it works.