Spousal Elective Share Requirements in South Carolina

At a glance

Requirements one by one

The one-third probate-estate system

South Carolina uses a probate-estate elective share under § 62-2-201, not a broad augmented estate. The share is a flat one-third. Marriage length does not change the fraction.

Section 62-2-202 defines the base as property passing under the will plus property passing by intestacy, reduced by funeral expenses, administration expenses, and enforceable claims. For example, a $900,000 will-and-intestacy estate with $150,000 of those reductions produces a $750,000 probate estate and a preliminary elective share of $250,000.

The ordinary rule is that nonprobate property does not enlarge that base. The narrow exception is § 62-7-401(c): if a court finds a revocable lifetime trust illusory for elective-share purposes, its assets enter the probate estate only for calculating and satisfying the share. The trust remains valid for other purposes.

Who may elect

The decedent must have been domiciled in South Carolina. A nonresident decedent's spouse instead follows the law of the decedent's domicile. Section 62-2-203 makes the election personal to the spouse during life but permits a duly appointed attorney-in-fact to act. If the spouse is a protected person, the court handling the protective proceeding must order the election.

The surviving-spouse definition has specific edges. Section 62-2-802 excludes specified divorce, annulment, and marital-property-right situations, while a separate-maintenance decree that leaves the marriage intact is not itself a divorce. A claimed common-law marriage must satisfy the section's adjudication deadline and clear-and-convincing proof rule. Section 62-2-803 separately bars a person who feloniously and intentionally killed the decedent.

Deadline, filing, and hearing

Section 62-2-205 uses the latest, not the earliest, of three dates:

• eight months after death;
• six months after informal or formal probate of the will; or
• thirty days after the spouse is served with a summons and petition to set aside informal probate or modify or vacate a formal-probate order.

The spouse files a summons and petition and serves the personal representative, if there is one. Hearing notice must go to that representative and to distributees and probate-estate recipients whose interests would be adversely affected. After notice and hearing, the court determines the amount and orders payment or contribution. Section 62-1-302(a) places decedent-estate matters in the probate court's exclusive original jurisdiction, subject to its stated exceptions and removal rules.

Part 2 states no extension mechanism. The spouse may withdraw or reduce the demand until the court enters a final determination.

Waiver requirements

Section 62-2-204 permits a whole or partial waiver before or after marriage. The waiver must be a written contract, agreement, or waiver voluntarily signed by the waiving party after fair and reasonable written disclosure of the other party's property and financial obligations.

A document waiving all rights in a present or prospective spouse's property or estate generally also waives the elective share, homestead allowance, exempt property, intestate benefits, and benefits under an earlier will unless the document says otherwise.

Credits, payment, and retained benefits

The election is not an automatic rejection of the will. Section 62-2-206 says the spouse remains entitled to benefits under or outside the will and to the listed statutory allowances, but the statute charges specified benefits against the elective share.

Section 62-2-207 applies spouse-received property first. Its list reaches will and intestacy property, homestead and exempt-property benefits, life-insurance beneficiary designations, IRA and retirement-plan or annuity designations, testamentary trusts, and revocable lifetime trusts. These nonprobate benefits are credits even though they ordinarily are not part of the § 62-2-202 calculation base.

The remaining balance is funded from probate property, with devises abating under the referenced order. Qualifying spouse interests use date-of-death value; the personal representative chooses assets for payment using fair market value at distribution. An electing spouse who is income beneficiary of a qualifying trust may require conversion to a total-return unitrust.

What trips people up

• The base and the credits are different lists. Life insurance, retirement benefits, and revocable-trust benefits passing to the spouse can reduce the amount payable without becoming ordinary probate-estate assets.
• An illusory-trust finding is limited. It brings trust assets into the calculation and payment process but does not invalidate the trust generally.
• The deadline is a latest-of formula. A late probate or a later probate- challenge notice can control even after eight months from death.
• The election preserves benefits and then credits them. Describing it as a simple renunciation of the will misstates §§ 62-2-206 and -207.

Common questions

Does a short marriage reduce the one-third fraction? No. Section 62-2-201 states one-third and supplies no marriage-duration schedule.

Can an agent file for the spouse? Section 62-2-203 permits a duly appointed attorney-in-fact to exercise the right while the spouse is alive. A protected person's election instead requires an order from the court handling the protective proceeding.

Can the spouse withdraw after filing? Yes, but only before entry of the court's final determination. The spouse may also reduce the demand before that point.

Does the statute require the petition to be notarized? Part 2 requires a summons and petition, filing, service, notice, and a hearing, but does not state a notarization requirement.

Statutes and sources

• S.C. Code §§ 62-2-201 to -203 — domicile, one-third share, probate-estate definition, reductions, and who may exercise the right. Official Title 62, Chapter 2 (accessed 2026-08-02).
• S.C. Code §§ 62-2-204 to -205 — waiver, three-trigger deadline, summons and petition, service, hearing notice, withdrawal, and determination. Official Title 62, Chapter 2 (accessed 2026-08-02).
• S.C. Code §§ 62-2-206 to -207 — retained benefits, spouse credits, valuation, payment assets, and abatement. Official Title 62, Chapter 2 (accessed 2026-08-02).
• S.C. Code §§ 62-2-802 to -803 — surviving-spouse exclusions and the homicide bar. Official Title 62, Chapter 2 (accessed 2026-08-02).
• S.C. Code § 62-7-401(c) — illusory-revocable-trust exception. Official Title 62, Chapter 7 (accessed 2026-08-02).
• S.C. Code § 62-1-302(a) — probate-court jurisdiction over decedent estates. Official Title 62, Chapter 1 (accessed 2026-08-02).