The Elective Share in South Carolina is governed by South Carolina Code §62-2-201. The surviving spouse is entitled to a third of the deceased spouse’s probate estate after all debts and expenses have been paid. The probate estate is all assets titled in the deceased spouse’s name. South Carolina courts have also ruled that the elective share may be made on assets in a revocable living trust even though they are not probate assets. The elective share is not mandatory and must be elected by the spouse after the last of eight months after death of the spouse or six months after probate of the will occurs. Making an elective share can be complicated and be met with resistance from other heirs so getting help from an attorney may be helpful. Your spouse must be someone you were married to at the time of your death. The elective share can be waived by a prenuptial agreement or limited by estate plans that include structures such as QTIP Trust.
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