So, you're getting divorced: Important probate and estate issues to consider
Getting a good divorce lawyer isn't the only legal consideration in a divorce.
There is a lot more to consider and be proactive about. South Carolina law has changed in recent years. It's important to consult an estate planning attorney who is familiar with the new laws and how they affect you.
- If you intentionally kill your spouse, you will not receive any benefits from their estate. It's the law!
- If you or your spouse pass away prior to a final divorce decree:
- A pre-nup or post-nup which waives all rights in the property or estate, or a complete property settlement entered into in consideration 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.
- Elective Share: A surviving spouse may elect to take an elective share in one-third of the deceased spouse's probate estate. This would generally be elected if the surviving spouse is left less than one-third by the deceased spouse or completely omitted from the deceased spouse's estate.
- In South Carolina, you cannot just cut out your spouse at your death and expect them not to receive anything without following the proper legal methods to limit or eliminate the amount they can receive---even if you are going through a divorce or are separated from them! We can set up a Q-Tip trust or provide other options to you.
- You must have a final divorce decree (signed by the Court and filed in the office of the clerk of court) or annulment to terminate your marital status for purposes of determining marital rights. A decree of separate maintenance does not terminate the status of spouses under Section 62-2-802 of the Probate Code.
- Beneficiary designations are changed by divorce, but if a company doesn't know, they may send distributions where you don't want them. It's important to update your accounts, beneficiary designations and fiduciaries.
- Common Law Spouse: If two people are living together as a married couple at the death of one of them, the other may claim to be a common law spouse and receive the benefits of a spouse after death (including assets that would normally go to the deceased person's children or family).
- Adjudication must begin within the later of eight months after death or six months after the appointment of the personal representative. Clear and convincing proof of the common law marriage must be presented to the Court.
- When writing up property settlement agreements, consult a lawyer knowledgeable in refinances, assumptions, types of deeds and title insurance. It is easy to direct property transfers in a settlement agreement that don't make sense. A quit claim deed is often not the best type of deed to use, so ask someone familiar with real estate law before requiring it in your agreement.
If you would like comprehensive advice on these issues and more, please contact us to schedule a consultation. This is a small snapshot of some of the issues that may be encountered.
Call 803-563-5163 or send us your info at: www.lawyerlisa.com/contact-attorney-lisa-hostetler