Live in Lovers, “Common Law” Marriage …
and the Elective Share

For everyone out there who has a live in girlfriend or live in boyfriend, be careful. When you pass, they can claim (1) you were married and (2) they get 1/3 of your estate. In South Carolina, you can be deemed legally married without a formal ceremony. It is called “common law” marriage. In essence, if (a) you both intend to be married and (b) you both hold yourself out to the public as married, then you can be deemed married. This means a surviving girlfriend can be entitled to 1/3 of your estate by virtue of the elective share if they are successful in proving they were “common law” married to you.

In South Carolina, you cannot disinherit a spouse absent a prenuptial agreement to the contrary. Surviving spouses are entitled to 1/3. The doctrines in South Carolina, of “common law marriage” and the “elective share” combine to potentially create a real serious problem. Let’s assume Jack and Susan live together and that Jack predeceases Susan. Let’s further assume that upon Jack’s death, Susan makes a claim that they were married by virtue of “common law” marriage. Susan will have to prove by clear and convincing evidence that they both intended to be married and that they both held themselves out to the public as married. The court considers the totality of the circumstances. If Susan prevails, she could get 1/3 of Jack’s estate. What is worse? If Susan was omitted completely, and she is successful in proving “common law” marriage, then she can be entitled to 1/2 of your estate by virtue of the law in South Carolina that pertains to Omitted Spouses.
Under South Carolina law, can you leave 1/3 to a spouse (common law married or by formal ceremony) and satisfy their legal entitlement? Yes. Can you satisfy your spouse’s right to 1/3 by leaving that 1/3 in a trust for the benefit of the surviving spouse? Yes. What can this do? It can guarantee the remainder interest will go to your children from a first marriage. In sum, when you cohabitate with another in South Carolina, it is incumbent upon you to make sure your intentions are clear as to whether they are a spouse or not. Avoiding problems in advance is the name of the game.

~~ Contributed by: Mark F. Winn, Master of Laws (LL.M.) in Estate Planning, a local asset protection, estate planning and elder law attorney.