A Word on the Elective Share

Disinheriting a spouse in South Carolina is not easy.  Basically, South Carolina law provides that a surviving spouse is entitled to 1/3 of the predeceased spouse’s estate.  In other words, generally, without a valid prenuptial agreement, the survivor of a married couple can claim that they are entitled to 1/3 of the predeceased spouse’s estate.  It is called the “elective share”. 

The big question is: Can a person leave their spouse 1/3, in trust, for their benefit and still satisfy the elective share.  The answer is: Yes, if the trust is drawn properly.  What can this accomplish?  This can give the survivor a beneficial interest that satisfies the elective share.   What can this accomplish?  This can make it so you can direct and control the remainder interest.  The remainder interest is a future interest.  In effect, with a trust, you can leave your spouse what they are entitled to under the law, and you can also direct the future remainder interest in that trust to your children from a first marriage.

For instance, let’s say Jack and Susie are in a second marriage.  Jack has three children from a prior marriage: Ann, Mildred, and Delilah.  Jack never got a prenuptial agreement when he married Susie.  Now Jack wants to ensure his children will get some of his assets when he is no longer here.  What can Jack do?  Jack can provide Susie gets 1/3 of his assets, in trust for her benefit, and the rest goes to his children.  Also, Jack can control the remainder interest in the trust that was left for the benefit of Susie and ensure what is left of this trust when Susie passes will go to his children. 

And so the moral of the story is while you can’t easily disinherit your spouse without a valid prenuptial agreement, you can leave their share in a manner (in trust) that ensures the ultimate recipient will be your children.

Contributed by:

Mark F. Winn

Attorney at Law, PLLC