Often it is important to determine whether there was a common law marriage upon the death of one of the parties. A 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.
If they are found to have been married for over ten years, the surviving spouse can 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 their 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.
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.”
Unless you file your claim as to a common law marriage 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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