§ 351 HISTORY OF FAMILY PROTECTION

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 351 History of family protection

Because the law in this area has changed considerably over time, an examination of its evolution helps put the current spousal protection provisions in context.

§ 351.1 Dower and curtesy

The common law provided certain rights in real estate to a surviving spouse. A husband who survived his wife was entitled to curtesy, which was a life estate for him in all the lands owned by his wife, but only if children were born of the marriage. By statutory enactment, the legislature abolished the common law right of curtesy in 1883.³¹⁷ A wife who survived her husband was entitled to dower, which was a life estate for her in one-third of all land owned by her husband. Although the common law created the right, dower was recognized in statutes for such purposes as waiver³¹⁸ and forfeiture of the right.³¹⁹ Unlike curtesy, dower continued as a viable right through much of the twentieth century.

Although dower entitled a surviving wife to a life estate in one-third of her deceased husband's lands, she was allowed to convert her interest from real estate to cash: a widow could be entitled to a cash payment of one-sixth of the value of the real property in lieu of the life estate in one-third of the land.³²⁰ Note that the admeasurement was based on one-sixth of the value of the real property regardless of the widow's age or life expectancy, which ordinarily would be the measure for the value of a life estate. The failure to bother with the calculation of an actuarial value of a life estate for admeasurement purposes portended the legislature's failure to consider the actuarial value of property qualifying for the federal estate tax marital deduction for elective share purposes.³²¹

The South Carolina Supreme Court ruled dower unconstitutional on equal protection³²² grounds in Boan v. Watson.³²³ The ruling was effective prospectively only from the date of the opinion: May 22, 1984. Thereafter, the legislature amended section 21-5-10 to provide that dower was abolished statutorily. The statute does not indicate whether it is retroactive. Assuming both Boan v. Watson and the amendment to section 21-5-10³²⁴ are prospective only, then dower would still apply to widows whose husbands died before May 22, 1984.

§ 351.2 Homestead exemption

Before the SCPC, the head of a family was entitled to statutory protection of $1,000 worth of real estate from the claims of creditors during the debtor's lifetime.³²⁵ This de minimus protection extended to the estate of the head of the family.³²⁶ Moreover, the head of a family was entitled to protection of $500 worth of personal property from the claims of creditors during the debtor's lifetime, and this protection was also extended to the decedent's estate. Enacted in 1981, section 15-41-200 greatly liberalized the amount of personal property exempt from creditor's claims. It was problematic whether section 15-41-200 extended to the debtor's estate. However, in 1988, the legislature enacted an amendment to this homestead exemption, which repealed all the substantive statutory provisions except section 15-41-200, which was recodified at section 15-41-30, but still with no indication whether that statute applies to a debtor's estate.

This question was eventually resolved by the courts. In Scholtec v. Estate of Reeves³²⁷ a creditor obtained a judgment in Minnesota against the decedent and his then-wife. After the decedent and his wife divorced, he moved to South Carolina. The...