Dying without a will in SC

UPDATED: May 16, 2009

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Dying without a will in SC

If me or my husband dies, would the surviving spouse have to sell our home (bought 3 years ago, and only have small equity bulit up, and in both our names) to give his 2 children and my 3 their share of the estate?

Asked on May 16, 2009 under Estate Planning, South Carolina


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

It depends.  If you held your home in what is called "Joint Tenancy" then the house passes to the surviving spouse, and the surviving spouse alone.  JT is ownership of property by two or more persons with right of survivorship built in.  If two parties own a parcel of property as joint tenants and one of them dies, the survivor owns the property in severalty (all their own).  If individuals wish to become joint tenants, then the deed must specifically state joint tenants or right of survivorship

If the deed does not indicate this and there is more than one owner, they automatically become Tenants in Common.  This would mean the upon the death of a spouse their share would pass according to the terms of the will.  If there is no will (your situation) then the deceased spouse's share would be distributed according to South Carolina intestacy laws.  In this case the children of the deceased spouse.  In other words, you would own half and the deceased's children would own the other half.  Your children would only be entitled to your share upon your death, unless they were legally adopted by your husband.

You should really speak with an attorney about estate planning; especially since step children are involved.  Estate matters can get sticky and the more clearly things are spelled out now on the division of assets the better it will be for all concerned later. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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