Disclaimer: This is for informational purposes only and does not constitute legal advice. For guidance specific to your situation, consult a qualified attorney.
Detailed Answer
In South Carolina, a surviving spouse may request a family allowance under the probate code (SC Code Ann. § 62-2-803) or elect against the will (SC Code Ann. § 62-2-801). To succeed, the spouse must prove a valid marriage.
Effect of an Incomplete or Missing Marriage Certificate
Court rules treat a certified marriage certificate as prima facie proof of marriage. If the certificate is missing or incomplete, you can use secondary evidence to establish the marriage’s existence and validity. Acceptable evidence includes:
- Affidavits from the officiant, witnesses, or family members.
- Church or religious institution records documenting the ceremony.
- Civil documents such as joint tax returns or property deeds showing marital status.
- Government records like a marriage license application file.
Burden of Proof
The surviving spouse bears the burden to prove the marriage. Submit adequate evidence of both the ceremony and compliance with statutory formality requirements, such as obtaining and filing a marriage license with the county registrar under SC Code Ann. § 62-1-201.
Court Discretion and Potential Challenges
South Carolina courts may admit secondary evidence when the primary certificate is unavailable without the spouse’s fault. However, if the missing certificate raises concerns of fraud, invalidity or bigamy, the court may require more rigorous proof. This scrutiny can delay or reduce the family allowance or elective share distribution.
Practical Steps for Surviving Spouses
- Search county records where the marriage likely occurred.
- Obtain and preserve affidavits from credible witnesses.
- Gather church or community records promptly.
- File a motion for family allowance within 10 days of probate initiation.
- Consider hiring a probate attorney if evidence is weak or contested.
Helpful Hints
- Store vital records in multiple secure locations.
- Collect community or religious documentation early.
- Use detailed, notarized affidavits when certificates are missing.
- Observe probate deadlines closely to protect your claim.
- Seek legal guidance if there is any dispute over marriage validity.