South Carolina law will determine who receives your assets if you die without a valid Last Will and Testament. Dying without a will is called “intestacy”, and each state has its own intestacy law. There are lots of variations in intestacy laws across the country and lots of nuances that apply to specific situations.
South Carolina’s intestacy law says that if you die without a Will and have children and a spouse, your spouse will receive one-half of your intestate estate and your children will receive the other half. If there are no children, the surviving spouse would receive the entire intestate estate.
It is important to know that not every asset is governed by the intestacy statute. For example, if you have IRAs or life insurance with named beneficiaries, or assets owned jointly with rights of survivorship (JTWROS), then those IRAs, life insurance proceeds, or JTWROS assets would go to the individual named as beneficiary or co-owner.
If there is no surviving spouse and no Last Will and Testament, the entire intestate estate would go to your children in equal shares. If one of your children is deceased, your child’s children (if any) would share equally in the deceased child’s share, known as taking “by representation”.
If you have no surviving spouse and no “issue” (children or grandchildren), your parents would inherit your intestate estate equally. If neither of your parents is alive, next in line is the “issue” of your parents or either of them, by representation.
The intestacy statute continues to name more and more distant relatives until the intestate heirs are identified. Half-blood heirs are treated the same as whole blood heirs. (SC Code Section 62-2-107) It can become a real challenge to identify and find all of the intestate heirs.
In order to “survive” someone, you have to survive by one hundred twenty hours, or else you are deemed to have predeceased them. (South Carolina has adopted the Uniform Simultaneous Death Act). Unborn babies who are potential heirs must live one hundred twenty hours after their birth in order to “survive”. Unborn babies of the decedent conceived before death can inherit if they are born within ten months and survive one hundred twenty hours.
Legally adopted persons are considered the child of an adopting parent and not of the natural parent (unless the adoption was by a stepparent). An exception is for adoptions of adults.
A person born out of wedlock is a child of the mother; and can also be a child of the father if the natural parents participated in a marriage ceremony before or after the birth of the child. The child born out of wedlock can also become a child of the father for purposes of intestate succession if paternity is established in a court action started before the father dies, or within eight months after the death of the father if established by clear and convincing evidence (or six months after the initial appointment of a personal representative of the father’s estate). South Carolina Code Section 62-2-109.
If you have no heirs as defined under the South Carolina code sections 62-2-102 and 62-2-103, your intestate estate will “escheat”, or pass, to the State of South Carolina. Section 62-2-105.
This article is not an exhaustive explanation of South Carolina intestacy. Consult an attorney to discuss your specific questions and to prepare estate planning documents that will direct your assets to your intended beneficiaries after your death.
© Karen S. Hindson, Hindson & Melton LLC June 14, 2014