South Carolina is one of the few states where you can get married even after you are dead. This is an issue in estate planning since a spouse may have a claim against your estate even if you have a valid will.
A common law marriage is still valid in South Carolina, the problem is in proving it once one party has passed. There are numerous online reports that it has been outlawed but that is not true, at least as of 2016.
A surviving spouse is entitled to survivor Social Security benefits, all of the deceased spouse's IRA's and retirement accounts subject to ERISA and to at least one third of the deceased spouse's estate as the spousal elective share even if there is a Last Will and Testament leaving all of the estate to other heirs. However, to collect any of these benefits you will need an order from the probate court finding that there was a common law marriage.
A common law spouse may also be entitled to additional Social Security or Veteran's benefits. Often, this can be the difference in the surviving partner being left penniless and homeless or with the same benefits as if there had been a formal marriage. In Greenfield's Estate, the South Carolina court found there was a marriage when the heirs challenged the woman's standing as widow on grounds that she had used her maiden name in all business transactions and that the man had stated to several witnesses that he had no wife. The Court found that during their ten years of cohabitation, the woman had undertaken the “usual duties and responsibilities of a wife” and that she and the man had received guests and had been received as guests in others homes as husband and wife.
In the probate court there is now a higher burden of proof for a common law marriage (clear and convincing) required to prevail. This is similar to but not quite as high as the criminal burden of proof of beyond a reasonable doubt. Usually the judge will want to see documentation signed by the deceased indicating that they considered themselves married. This can be in the form of joint tax returns, applications for health insurance, applications for a mortgage, etc.
Under South Carolina law, the surviving spouse is entitled to a minimum of one third of the deceased spouse's estate even if there is a last will and testament leaving the entire estate to others. This is often the case where the parties have not formally married and the deceased has children or executed the will prior to the time the parties started living together.
Section 62-2-201 provides that “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.”
However, there is not an automatic elective share right and the surviving spouse must file a claim with the probate court within certain time limits.
SECTION 62-2-205. Proceedings for elective share; time limit.
"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."
This is what is called a formal probate proceeding and you should retain a South Carolina Probate attorney to assist you in order to properly preserve your elective share rights to the estate.
Unless you file your common law marriage claim with the probate court within the statute of limitations, it will be denied.
Section 62-2-802(b)(4) states that a surviving spouse does not include: (4) a person claiming to be a common law spouse who has not been established to be a common law spouse by an adjudication commenced before the death of the decedent or within the later of eight months after the death of the decedent or six months after the initial appointment of a personal representative; if the action is commenced after the death of the decedent, proof must be by clear and convincing evidence.
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