What is the elective share of the surviving spouse in South Carolina?

Full question:

I got to know about my husband’s will only after his death. During his lifetime he never mentioned of making a will. In his will, he has given away everything to his brother. I want to claim my elective share in his estate. Please tell, what will be elective share in his property?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: South Carolina

Answer:

Your elective share would be one third of your husband’s property (probate estate ) that is passing under your husband’s will and the rest of the property that is not covered in the will or by any other binding declaration. However, this property or probate estate of your husband is the estate that remains after the deductions for the funeral and administration expenses and enforceable claims have been made.

S.C. Code Ann. § 62-2-201:

Right of elective share.
 

(a) If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of one-third of the decedent's probate estate, as computed under Section 62-2-202, the share to be satisfied as detailed in Sections 62-2-206 and 62-2-207 and, generally, under the limitations and conditions hereinafter stated.
(b) If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedent's domicile at death.
(c) "Surviving spouse", as used in this Part, is as defined in Section 62-2-802.

 
S.C. Code Ann. § 62-2-202:
Probate estate.
 

(a) For purposes of this Part, probate estate means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy, reduced by funeral and administration expenses and enforceable claims.
(b) Except as provided in Section 62-7-401(c) with respect to a revocable inter vivos trust found to be illusory, the elective share shall apply only to the decedent's probate estate.

 
S.C. Code Ann. § 62-2-203:
Exercise of right of election by surviving spouse.

The right of election of the surviving spouse may be exercised only during his lifetime by him or by his duly appointed attorney in fact. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending.

 
S.C. Code Ann. § 62-2-204;
Voluntary waiver of surviving spouse's right to elective share, homestead allowance, and exempt property; property settlement in anticipation of divorce.
 

(A) The rights of a surviving spouse to an elective share, homestead allowance, and exempt property, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver voluntarily signed by the waiving party after fair and reasonable disclosures to the waiving party of the other party's property and financial obligations have been given in writing.
(B) Unless it provides to the contrary, a waiver of all rights in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, and exempt property by each spouse in the property of the other and a disclaimer by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of a will executed before the waiver or property settlement.

 
S.C. Code Ann. § 62-2-205:

Proceedings for elective share; time limit.
 

(a) The surviving spouse may elect to take an elective share in the probate estate by filing in the court and serving upon the personal representative, if any, a summons and petition for the elective share within the later of (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.
(b) The surviving spouse shall give notice of the time and place set for the hearing on the elective share claim to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw or reduce his demand for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the amount of the elective share and shall order its payment from the assets of the probate estate or by contribution as set out in Sections 62-2-206 and 62-2-207.
(e) The order or judgment of the court for payment or contribution may be enforced as necessary in other courts of this State or other jurisdictions.