Omitted or Pretermitted Children Under Wills in South Carolina
At a glance
| Will and child covered | Later-born/adopted child omitted from will; living child mistakenly believed dead (§ 62-2-302(a)–(b)). |
|---|---|
| Birth or adoption timing | Birth or adoption after will execution; living child believed dead at execution has separate route (§ 62-2-302(a)–(b)). |
| Naming and provision test | Will fails to provide for child; mistaken-death route requires omission solely from that belief (§ 62-2-302(a)–(b)). |
| Intentional omission | Later-child share excluded if intentional omission appears from will (§ 62-2-302(a)(1)). |
| Other-parent gifts | Later-child share excluded if substantially all estate devised to spouse when will executed (§ 62-2-302(a)(2)). |
| Outside gifts and advancements | Outside transfer defeats later-child claim if intended in lieu of will provision; statements, amount, or other evidence show intent (§ 62-2-302(a)(3)). |
| Baseline statutory share | Intestate-equivalent value for later child or living child believed dead (§ 62-2-302(a)–(b)). |
| Effect of gifts to existing children | No separate reduction keyed to devises for children living at execution; intestate-value measure applies (§ 62-2-302(a)–(b)). |
| Property source and abatement | Will devises abate under § 62-3-902: undisposed property, residue, general, then specific devises (§ 62-2-302(c)). |
| Trust and nonprobate reach | Outside transfer can defeat later-child claim; share and abatement provisions operate on estate and will devises (§ 62-2-302(a)(3), (c)). |
Requirements one by one
Eligible child and share
Under § 62-2-302(a), the child must have been born or adopted after the will and left without a will provision. A living child can claim under subsection (b) if the testator left the child out solely because the testator believed that child dead when signing the will. Both routes start with the value of an intestate share, without a separate equalized pool of devises to children living at execution.
Abatement and claim procedure
The rule in § 62-2-302(c) sends the share to § 62-3-902(a)'s order: property not disposed of by the will, residuary devises, general devises, then specific devises. The will's own order or the testamentary plan can change that sequence under subsection (b).
Section 62-2-302(d) requires the child or guardian or conservator to file in court and serve a summons and petition on the personal representative, if any. The deadline is the latest of eight months after death, six months after informal or formal probate, or thirty days after service of a petition challenging or modifying probate. The claimant must also give hearing notice to the representative and affected recipients.
What trips people up
The spouse exception in § 62-2-302(a)(2) turns on a devise of substantially all the estate to the spouse when the will was executed. The text does not add a condition that the spouse be the child's other parent. The outside-transfer exception separately requires evidence that the transfer was meant in lieu of a testamentary provision.
Common questions
Must the child bring a court proceeding? Yes. Section 62-2-302(d) requires a filed and served summons and petition within its time limit.
Can the will show the later child was deliberately omitted? Yes. Intentional omission appearing from the will defeats the later-child share under § 62-2-302(a)(1).
Statutes and sources
- S.C. Code §§ 62-2-302 and 62-3-902. Verbatim current text, official chapter URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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