Dying without a will in SC
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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 11 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.
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