Intestate Succession in South Carolina

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 pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:

• property you've transferred to a living trust
• life insurance proceeds with a named beneficiary
• funds in an IRA, 401(k), or other retirement account with a named beneficiary
• securities held in a transfer-on-death account
• real estate for which you have a transfer on death deed
• vehicles for which you have a transfer on death registration
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.

To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in South Carolina.

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:

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. S.C. Code Ann. § 62-2-109.
• 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. S.C. Code Ann. § 62-2-109.
• Posthumous children. Children conceived by you before death will receive a share, as long as they are born within ten months of your death. S.C. Code Ann. § 62-2-108.
• 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 eight months from your death or six months after a personal representative was appointed for your estate. S.C. Code Ann. § 62-2-109.
• Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. S.C. Code Ann. § 62-2-106.

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, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or great grandparents.

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. S.C. Code Ann. § 62-2-104.
• 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. S.C. Code Ann. § 62-2-107.
• Posthumous relatives. Unless they are your children or other direct descendants, relatives conceived before -- but born after -- you die will not inherit from you. S.C. Code Ann. § 62-2-108.
• 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. S.C. Code Ann. § 62-2-112.
• Advancements. If you gave property to a relative during your lifetime, the value of this gift is subtracted from your relative's share only if you stated this in writing at the time of making the gift or your relative admitted it in writing at any time. S.C. Code Ann. § 62-2-110.

Learn More

To learn more about intestate succession, read How an Estate Is Settled If There's 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.

Need a lawyer? Search for an experienced estate planning attorney with Nolo's Lawyer Directory.