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.

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.

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.

Divorce is never easy, but we can help. Learn More

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.

Divorce is never easy, but we can help. Learn More
How Much of a Husband's Estate Is a Widow in Florida Entitled To?
 

References

Related articles

Does a Quitclaim Deed Pass to the Heirs?

When a person dies, a significant portion of his property passes through the probate process to be divided and distributed among the decedent’s heirs. Traditionally, an heir was a surviving spouse or relative who received property under the state’s intestacy provision. Intestacy only takes effect when there is no valid will. However, the modern definition of an heir includes anyone who receives property from an estate, whether through intestacy or a will bequest. The ownership rights of the heirs, including property that was acquired by the decedent through a quitclaim deed, depends on the circumstances of the transfer.

Pennsylvania Inheritance Laws for Spouses

Every state but Georgia protects a spouse’s right to inherit when her partner dies. In Pennsylvania, the law does not allow an individual to disinherit his spouse, ensuring she gets a portion of her spouse's estate if he dies without a will. However, a catch exists. Their marriage must be intact and not on the brink of divorce.

The Inheritance Hierarchy Without a Will in New York State

A person who dies without leaving a will is said to have died “intestate.” New York courts distribute intestate property according to a statutory scheme of succession and these laws apply only to property located in the state of New York. Laws of other states may apply to real property located outside of New York, even if the decedent had been a legal resident of the state. The intent of New York's intestate succession law is to distribute the estate in the manner in which the decedent likely would have had she left a will; the statutory scheme distributes the decedent's property to the closest surviving relatives first.

Get Divorced Online

Related articles

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 ...

Can the Provisions in a Will Trump a Premarital Agreement?

Generally, a premarital agreement trumps a will rather than the other way around, but there are exceptions. Most state ...

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 ...

What Do Provisions in Lieu of Dower Mean in a Divorce?

The concept of dower dates back to days when wives rarely had any property of their own and marriages more commonly ...

Browse by category
Ready to Begin? GET STARTED