Rights of a Surviving Spouse to a Decedent’s Estate

It is important for married couples to understand their rights to a deceased spouse’s estate. This is particularly important in a second marriage situation or other circumstance where a child’s rights in the decedent’s estate may be in conflict with those of the surviving spouse.

The Georgia and South Carolina Probate Codes both name the surviving spouse as the sole heir of a decedent who dies intestate (without a Will) if the decedent is not survived by children. However, if the decedent is also survived by children, then the surviving spouse shall share equally with the children in Georgia; provided, the surviving spouse’s share shall not be less than a one-third share. South Carolina provides that the surviving spouse is entitled to one-half of the intestate estate under these circumstances.

Even if a decedent excludes his or her spouse under the terms of a Last Will and Testament, the surviving spouse may be entitled to Year’s Support in Georgia and an “Elective Share” of one-third of the decedent’s probate estate in South Carolina. The Georgia Year’s Support provisions provides some additional advantages, enabling a surviving spouse to take his or her share ahead of many of the other creditors of the estate and potentially avoid property taxes for a year. In both Georgia and South Carolina, if the decedent marries after drafting a Will, but fails to amend the Will to include the new spouse, then such spouse will be entitled to the “intestate share,” described above.

State law also allows for the rights of a surviving spouse to be waived, wholly or partially, before or after marriage. This may be accomplished through a pre- or post-nuptial agreement; however, it is imperative that the agreement be signed after “fair and reasonable disclosures” of property and financial obligations have been given in writing to the waiving party. Divorce or annulment will also waive an individual’s right to claim an intestate share or elective share.

In summary, it is important for married couples to pay careful attention to their estate planning documents to ensure that their estate is divided according to their wishes.