South Carolina Marital Property and Dower Laws

By Mary Jane Freeman

In South Carolina, when a marriage comes to an end, property is divided between spouses in a manner that is fair and just based on the circumstances. However, if a spouse dies while the couple is still married, property is distributed by a different standard. In years past, a wife would be entitled to a "dower," an automatic one-third share of her deceased husband's property. Nowadays, the property a wife inherits depends on the terms of her husband's will, if he had one, and state law.

In South Carolina, when a marriage comes to an end, property is divided between spouses in a manner that is fair and just based on the circumstances. However, if a spouse dies while the couple is still married, property is distributed by a different standard. In years past, a wife would be entitled to a "dower," an automatic one-third share of her deceased husband's property. Nowadays, the property a wife inherits depends on the terms of her husband's will, if he had one, and state law.

Dower Rights

Prior to 1984, South Carolina recognized dower rights. These rights were two-fold. First, dower guaranteed a married woman one-third of her husband's property when he died. Second, dower prevented a husband from selling land behind his wife's back. This is because, under the principle of dower, a husband could not sell land without the wife's knowledge and consent. As a result, dower provided a measure of financial protection for wives. However, the state abolished dower rights as a result of the 1984 case of Boan v. Watson. In a 5-1 decision, the South Carolina Supreme Court found the state's dower laws violated the equal protection guarantee of the 14th Amendment of the U.S. Constitution. In short, dower treated husbands and wives differently, granting rights to one and not the other in identical situations.

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Property Division Upon Divorce

Instead of adhering to dower principles, South Carolina now divides property between divorcing spouses based on a method known as equitable distribution. Under this distribution scheme, marital property -- property acquired during the marriage -- is divided in a manner that is fair and just, though not necessarily equal. In divorce, the court will determine a wife's equitable share of marital property, along with that of the husband, based on several factors set forth in state law. These factors include the length of the marriage, each spouse's emotional and physical health, marital misconduct, any custody and alimony orders, and any other factor the court finds relevant.

Property & Death (Will)

When a spouse dies, his property is distributed. This includes his share of marital property as well as his separate property, collectively known as the decedent's estate. Separate property is anything a spouse acquires before marriage or during the marriage by inheritance or gift. While a spouse's separate property cannot be divided and given to the other spouse in divorce, it can be when he dies. If the deceased spouse had a will, he may distribute all of his separate property and his share of marital property any way he likes. However, state law prohibits him from disinheriting his wife. If he attempts to do so, the surviving spouse may claim an "elective share" of his estate, entitling her to one-third of the property under state law. Although dower is no longer recognized in the state, elective share operates in a similar manner.

Property & Death (No Will)

If a spouse dies without a will in South Carolina, his property is distributed according to the state's intestate succession laws. Under these laws, a surviving spouse will receive the decedent's entire estate if the decedent doesn't leave any surviving children behind. However, if there are surviving children, the surviving spouse only receives one-half of the estate while the children receive the other half. After divorce, these automatic inheritance rights are extinguished by state law. Therefore, former spouses will not inherit from one another unless subsequent action is taken, such as drafting a new will specifically granting property to an ex-spouse.

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References

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The Widow's Legal Rights in South Carolina

South Carolina law provides a surviving spouse with the right to inherit from her deceased spouse's estate. An estate includes all property the decedent acquired during his lifetime. If a decedent had a will, the widow receives any bequest from the will. If there is a will, but the spouse is not included, she will still receive an inheritance in accordance with South Carolina's "elective share" laws. If a decedent dies without a will, the widow will inherit based on South Carolina's laws of intestate succession.

What Must a Surviving Spouse Inherit?

The amount a surviving spouse must inherit depends on a number of factors, including whether the married couple lived in a community property state and whether the deceased spouse made a will. If no will was left, then the spouse died "intestate," which means the surviving spouse’s share of the estate is governed by state law. If the decedent did make a will, the surviving spouse receives whatever was devised to her; however, the spouse's share of the estate cannot be less than prescribed by state law.

Mississippi Divorce Laws on Equitable Distribution

Mississippi divorce law changed significantly in 1994, when the Supreme Court handed down two important decisions in the cases of Ferguson v. Ferguson and Hemsley v. Hemsley. These precedents updated the state’s treatment of marital property in divorce. Mississippi is an equitable distribution state, so property is not necessarily divided 50/50 between spouses.

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