§ 360 QUALIFICATION AS SURVIVING SPOUSE

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 360 Qualification as surviving spouse

SCPC section 2-802 provides, rather obviously, that an individual who is divorced from the decedent or whose marriage was annulled is not a surviving spouse, unless they subsequently participated in a marriage ceremony or were living together as husband and wife at the time of the deceased spouse's death.⁴⁸³ Moreover, for purposes of intestacy,⁴⁸⁴ the elective share,⁴⁸⁵ and the omitted spouse's share,⁴⁸⁶ section 2-802 excludes from the definition of surviving spouse a person (1) who obtains a divorce or annulment, even if not valid; (2) who following a divorce or annulment, even though invalid, participates in a marriage

ceremony with a third person;⁴⁸⁷ or (3) a person who was subject to an order "purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent's death."⁴⁸⁸ SCPC section 2-802 also deals with the common law marriage by requiring that, for the spouse to be considered a surviving spouse, the marriage be timely established by adjudication. The 2013 amendments to South Carolina's version of the Uniform Simultaneous Death Act, as discussed above at section 204.1, generally imposes an additional requirement for qualification as a surviving spouse: surviving the decedent by 120 hours.

Section 62-2-802. Effect of divorce; annulment; decree of separate maintenance; order terminating marital property rights.

(a) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separate maintenance that does not terminate the status of husband and wife is not a divorce for purposes of this section.

(b) For purposes of Parts 1, 2, 3, and 4 of Article 2 [Sections 62-2-101 et seq., 62-2-201 et seq., 62-2-301 et seq., and 62-2-401 et seq.] and of Section 62-3-203, a surviving spouse does not include:

(1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this State, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or live together as husband and wife at the time of the decedent's death;

(2) an individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person;

(3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent's death; or

(4) an individual claiming to be a common law spouse who has not been established to be a common law spouse by an adjudication commenced before the death of the decedent or within the later of eight months after the death of the decedent or six months after the initial appointment of a personal representative; if the action is commenced after the death of the decedent, proof must be by clear and convincing evidence.

(c) A divorce or annulment is not final until signed by the court and filed in the office of the clerk of court.

When a divorce or annulment is the disqualifying event, SCPC section 2802 requires an order to be signed by the court and filed with the clerk's office. The South Carolina Court of Appeals interprets that requirement literally. In Hatchell-Freeman v. Freeman,⁴⁸⁹ the decedent's wife initiated a divorce action. The hearing was held a few days before the decedent died, but the family court did not sign the decree granting the divorce until a few days after the decedent's death. The decedent's wife sought her intestate share and appointment as personal representative. The court referred to SCPC section 2-802(c), which qualifies a surviving spouse unless the court signs an order of divorce and it is filed in the clerk's office. The...