Detailed Answer
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.
Under South Carolina’s intestate succession statutes, a surviving spouse’s share is fixed by law. If the decedent left descendants (children or grandchildren) or surviving parents, the spouse automatically receives:
- A life estate in one-third of the decedent’s real property (land and buildings); and
- One-third of the decedent’s personal property by value.
These provisions appear in South Carolina Code §62-2-205 (Share of surviving spouse when decedent is survived by descendants or parents). See: SC Code §62-2-205.
If the decedent left no descendants or parents, the surviving spouse takes the entire estate in fee simple—that is, full ownership of both real and personal property. See South Carolina Code §62-2-207 (Share of surviving spouse when decedent is survived by no descendants or parents): SC Code §62-2-207.
Key Point: Under these statutes, you do not have an option to elect a different form of ownership (for example, a life estate instead of fee simple) for your intestate share. Your share is determined automatically by which category the estate falls into (with or without descendants).
Election Against a Will (Different Scenario): If there is a will and you are a surviving spouse, you may choose to renounce the will’s provisions and instead take the statutory elective share under South Carolina Code §62-3-505. That elective share is generally one-third of the net estate but is not a different “life estate” in the real property. See: SC Code §62-3-505.
Helpful Hints
- Review SC Code §62-2-101 through §62-2-207 for homestead, exempt property, allowances, and intestate shares.
- If the decedent left no descendants or parents, your intestate share is fee simple—no election is needed or allowed.
- If the decedent left descendants, your share in real estate is automatically a life estate; you cannot convert it to fee simple by election.
- Election against a will is a separate process under §62-3-505 and does not change the form of your statutory intestate share.
- Consult an estate or probate attorney to confirm deadlines, filing requirements, and the precise valuation of the estate before probate.