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South Carolina Surviving Spouse Rights in Probate
Support GuideSouth Carolina10 min read

South Carolina Surviving Spouse Rights in Probate

South Carolina surviving spouse rights explained: the one-third elective share, the $45,000 exempt property allowance, and the intestate share in Probate Court.

By Settled Editorial

South Carolina law protects a surviving spouse from being left with nothing, even when a will says otherwise. A spouse cannot be fully disinherited: the Probate Code secures a minimum share of the probate estate through the elective share, sets aside exempt personal property, and gives the spouse an intestate share when there is no will. These protections all run through the county Probate Court.

This guide explains South Carolina surviving spouse rights the way they actually work under Title 62, Article 2 of the Probate Code: the one-third elective share, the $45,000 exempt property allowance, the intestate share, how these rights can be waived or lost, and the deadlines that control them.

Overview of Spousal Rights

South Carolina gives a surviving spouse several distinct protections. Each has its own source in the Probate Code, and they interact rather than simply stacking.

  • Elective share. The right to claim one-third of the decedent's probate estate against a will, under Sections 62-2-201 and 62-2-202.
  • Exempt property. Up to $45,000 of household goods, vehicles, and personal effects set aside for the spouse, under Section 62-2-401.
  • Intestate share. What the spouse inherits when there is no valid will, under Section 62-2-102.
  • Disqualification rules. Section 62-2-802 defines who counts as a surviving spouse and when a person is disqualified.

One point matters before the details. South Carolina measures the elective share against the probate estate, not an augmented estate that pulls in trusts, joint accounts, and lifetime transfers the way some states do. And the exempt property allowance is charged against, not added on top of, whatever the spouse takes by will, intestacy, or elective share.

The Elective Share

One-Third of the Probate Estate

Under S.C. Code Sections 62-2-201 and 62-2-202, a surviving spouse may set aside what a will provides and instead elect to take one-third of the decedent's probate estate. This is South Carolina's core protection against disinheritance. Even if the will leaves the spouse nothing, the spouse can claim this one-third share.

It Is the Probate Estate, Not an Augmented Estate

The fraction is measured against the probate estate, reduced by allowed claims and certain charges. South Carolina does not use an augmented estate. That is a meaningful difference from states that reach back into revocable trusts, jointly held property, and transfers made near death. In South Carolina, the starting point is the property that actually passes through probate.

Why It Exists

The elective share keeps a spouse from being cut out entirely. Instead of accepting a token gift, or nothing at all, the surviving spouse can choose the statutory one-third. It is an election: the spouse compares what the will provides against one-third of the probate estate and takes the better path.

Making the Election

The election is a formal filing with the county Probate Court, not an automatic result. A spouse who wants the one-third share must claim it within the deadline described below. Because the share is measured against the probate estate after allowed claims and certain charges, the value depends on the inventory, the debts, and the costs of administration. It is worth calculating both options, what the will leaves and what one-third of the probate estate produces, before filing.

Exempt Property

Up to $45,000 Set Aside for the Spouse

Separate from the elective share, S.C. Code Section 62-2-401 lets the surviving spouse claim household furniture, automobiles, furnishings, appliances, and personal effects up to $45,000 in value over any security interests. If those specific items are worth less than $45,000, the spouse may claim other estate assets to make up the difference.

This $45,000 figure was raised from $25,000 by Act No. 26 of 2025.

Who Can Claim It

The surviving spouse claims exempt property first. If there is no surviving spouse, the decedent's minor or dependent children may claim it instead.

Priority and How It Interacts

Exempt property has priority over most claims against the estate, which means the spouse generally receives it even when the estate is short on assets. But it is chargeable against, not in addition to, any share the spouse takes by will, intestacy, or elective share. In other words, it counts toward the spouse's total rather than sitting entirely on top of it.

Homestead and Allowance

Some states add a separate probate homestead right and a cash family allowance for support during administration. South Carolina does not. The exempt property allowance under Section 62-2-401 is South Carolina's principal family-protection allowance, and the state has no separate probate homestead allowance or family allowance layered on top of it.

That makes the $45,000 exempt property claim the practical support tool for a South Carolina surviving spouse. Property-tax homestead exemptions handled by the county auditor or assessor are a separate subject from probate title and do not change what the estate distributes.

Intestate Share

When There Is No Will

If the decedent dies without a valid will, S.C. Code Section 62-2-102 controls what the surviving spouse inherits:

  • No surviving descendants: the spouse receives the entire intestate estate.
  • Surviving descendants: the spouse receives one-half of the intestate estate, and the descendants share the other half.

The descendants' half passes under the statutory representation rule, and the rest of the heir order (parents, then siblings and their descendants, then more remote kin) applies only when no spouse or descendants survive. For the full chart and the special rules that can change a share, see the South Carolina probate without a will guide.

Intestate Share Versus Elective Share

The intestate share applies only when there is no will. The elective share is the tool a spouse uses to override a will. A spouse never takes both for the same estate: with a will, the choice is between what the will provides and the one-third elective share; without a will, the intestate share controls.

Waiver and Forfeiture

Waiving Spousal Rights by Agreement

A surviving spouse can give up the elective share and other spousal rights, in whole or in part, through a valid written agreement signed by the spouse, such as a premarital or marital agreement. To hold up, that kind of waiver generally has to be voluntary and made with fair knowledge of the other spouse's finances. Because the standards are specific, review any waiver with a South Carolina attorney before relying on it.

Disqualification as a Surviving Spouse

Not everyone who was married to the decedent counts as a surviving spouse for these rights. S.C. Code Section 62-2-802 defines who qualifies and lists disqualifications, so a divorce, an annulment, or certain kinds of separation can end spousal rights. Whether a person still qualifies is a legal question tied to the facts, and the Probate Court decides it if there is a dispute.

Deadlines

The elective share is time-sensitive. Under South Carolina practice, the surviving spouse must file the election with the Probate Court within the statutory deadline, generally the later of:

  • eight months after the decedent's death, or
  • six months after the will is admitted to probate.

Miss that window and the right to elect can be lost. Exempt property and any share under the will or intestacy are claimed during administration, so the practical rule is to raise every spousal right early rather than waiting for the estate to close.

RightWhen to act
Elective share electionLater of 8 months after death or 6 months after probate of the will
Exempt property claimDuring administration, before distribution
Intestate or will shareDuring administration, before the estate closes

Protecting Your Rights as a Surviving Spouse

A surviving spouse does not have to wait passively for the estate to be handled. A few early steps keep every protection open.

Confirm you received notice. The personal representative must give heirs and devisees information about the appointment and where the estate papers are on file. That notice tells you the estate is open and who is responsible.

Read the will and the inventory. The elective share choice depends on comparing what the will provides against one-third of the probate estate, so you need the inventory and appraisement to know the numbers.

Claim exempt property in writing. File your claim for the $45,000 exempt property allowance with the Probate Court during administration, before assets are distributed.

Calendar the election deadline. The right to elect against a will is lost once the filing deadline passes. Track it from the date of death and the date the will is admitted to probate.

Ask before you sign a release. Signing a receipt and release can close out a claim. Understand what you are giving up before you sign, and review any waiver of spousal rights with a South Carolina attorney.

Frequently Asked Questions

Can I be disinherited by my spouse in South Carolina?

Not completely. Even if the will leaves you nothing, S.C. Code Sections 62-2-201 and 62-2-202 let you claim an elective share of one-third of the decedent's probate estate, and Section 62-2-401 lets you set aside up to $45,000 of exempt property.

How much is the South Carolina elective share?

One-third of the decedent's probate estate. South Carolina measures it against the probate estate reduced by allowed claims and certain charges, not against an augmented estate that includes trusts and lifetime transfers.

What is the deadline to claim the elective share?

You must file the election with the Probate Court within the statutory deadline, generally the later of eight months after death or six months after the will is admitted to probate.

Does South Carolina have a family allowance or homestead allowance?

No separate one. The $45,000 exempt property allowance under Section 62-2-401 is South Carolina's principal family protection, and it takes the place of a separate probate homestead allowance or cash family allowance.

Related Guides

Sources

This guide provides general information about South Carolina surviving spouse rights. Every estate is different, and county practice varies. Consult a licensed South Carolina probate attorney about your situation. It is not legal advice.