Eliminate the Spousal Elective Share Law in SC Probate so the Departed's Wishes are Upheld
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On December 9, 2012, we suddenly and unexpectedly lost our healthy, active, loving 66-year-old mother, Daisy Harmon Wessinger. It was a shock to her family and friends and, nearly three years later, we are still reeling. We miss our mother every day and our lives will never be the same. This alone would be enough to bear, but there’s more to the story.
Our mother had a will which left all of her assets to her children. She remarried in 1993, and in 1994, she redid her will, again leaving all her assets to her children. Our mother and her husband had a verbal agreement that they would each take care of their own children. Her assets would pass on to her children and his assets would pass on to his children.
Unbeknownst to our mother, South Carolina has some antiquated laws on the books. Some believe these laws were originally enacted to protect widows (before women worked) so that they would not be left destitute if they lost their husbands.
South Carolina has a law called a Spousal Elective Share (SC Probate Code, Title 62) and this enables a surviving spouse who is left out of a will to electively file a claim for one third of his or her spouse’s estate. The deceased’s wishes do not matter. The surviving spouse is legally entitled to “elect” to make this claim against the estate. This is a voluntary action on the part of the surviving spouse. The surviving spouse has the option to “elect” to honor the deceased spouse’s last will and testament.
As you probably guessed, our mother’s husband filed a claim for Elective Share. He did this 47 days after her death. Our mother already provided for him through insurance and other liquid assets. Her wish was for the house she and our father built, and we were raised in, and the land that has been in our family for multiple generations, to be passed down to us, her children.
Changing this law won’t help our situation. However, we don’t want any other family to have to deal with the pain and suffering that we are still enduring while also attempting to grieve our mother’s passing.
In the three years since our mother’s death, we have discovered that, like us and our mother, South Carolinians are not aware of this law.
Every South Carolinian who makes their wishes known should have their wishes followed. Please remove this law from the SC Probate Code and allow South Carolinians to chose their last wishes and ensure that those wishes are carried out.
Maria Lindler-Steinke & Lee Lindler
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