If you die without a will in South Carolina, your assets will go to your closest relatives under state “intestate succession” laws. Here are some details about how intestate succession works in South Carolina.
Which Assets Pass by Intestate Succession
Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.
Many valuable assets don’t go through your will, and aren’t affected by intestate succession laws. Here are some examples:
- property you've transferred to a living trust
- life insurance proceeds
- funds in an IRA, 401(k), or other retirement account
- securities held in a transfer-on-death account
- payable-on-death bank accounts, or
- property you own with someone else in joint tenancy.
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.
Who Gets What in South Carolina?
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
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The Spouse’s Share in South Carolina
In South Carolina, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants -- children, grandchildren, or great grandchildren. If you don’t, then your spouse inherits everything. If you do, then your spouse inherits 1/2 of your intestate property.
Example 1: Bill is married to Karen, and they have two grown children. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright -- those things are not intestate property. Bill also owns $300,000 worth of other property that would have passed under a will. Karen inherits $150,000 worth of that property -- that is, half of $300,000. The two children inherit $75,000 each.
Example 2: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $100,000 worth of Barrett’s property -- that is, half of $200,000. Barrett’s daughter inherits the remaining $100,000 share of Barrett’s property.
Children’s Shares in South Carolina
If you die without a will in South Carolina, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of South Carolina must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
- Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do.
- Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
- Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won’t affect their intestate inheritance from you.
- Posthumous children. Children conceived by you before death will receive a share, as long as they are born within ten months of your death.
- Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they will receive a share of your estate if (1) you participated in a marriage ceremony that later turned out to be void, (2) your paternity was legally established before your death, or (3) your paternity is legally established after your death within the period of time required by South Carolina law.
- Grandchildren. Your grandchildren will receive a share only if their parent (your child) has died before you do.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the laws, you’ll find a link to the South Carolina Code at the end of this article.
Will the State Get Your Property?
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this happens very rarely, because the laws are designed to get your property to anyone who is even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, neices, nephews, or cousins.
Other South Carolina Intestate Succession Rules
Here are a few other things to know about South Carolina’s intestacy laws.
- Survivorship period. To inherit under South Carolina’s intestate succession statutes, a person must outlive you by 120 hours. So if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property.
- Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.
- Posthumous relatives. Some relatives conceived before you die, but born after, may inherit from you. In South Carolina, it is likely that only your children or other direct descendants can inherit in this way, but the law is not entirely clear. If you are concerned about this unusual issue, consult an experienced lawyer.
- Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
To learn more about intestate succession, read How an Estate Is Settled When There is No Will.
You can find South Carolina’s intestate succession laws here: South Carolina Code §§ 62-2-101 to 62-2-114.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
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