Common Law Marriage and Probate in South Carolina

For centuries, South Carolina recognized common law marriage. In effect, the law would consider two people married even though they had never received a marriage license or exchanged wedding vows. Common law marriage made sense in the early days of South Carolina when it was hard to get to the justice of the peace. A man and a woman would just shack up and call each other husband and wife.

In 2019, the South Carolina Supreme Court abolished common-law marriage in the state. However, they did so only prospectively—that is, going forward. No one can enter a common law marriage after July 24, 2019. But the Supreme Court states that common law marriages could be valid if you entered it before 2019.

Whether you have a valid common law marriage can make a big difference in probate law. Read on to find out how or contact Surasky Law today.

Is My Common Law Marriage Valid?

If you entered into it before July 24, 2019, then yes. The Supreme court was very clear that they weren’t abolishing already existing common-law marriages.

To have a valid common law marriage, the following must be true:

You and your spouse live together;
You and your spouse had an agreement to be married and intended to be married;
There are no impediments to marriage, such as one person already being married or one being underage;
You and your spouse held yourselves out as married to the public; and
You and your spouse entered into a common law marriage before July 24, 2019.

All of the above must be true. Simply living together as boyfriend and girlfriend does not create a common-law marriage. Two people can be romantically involved for 30 years and live together but not have a common-law marriage.

A Closer Look at Common Law Marriage

The issues most in dispute are whether you had the intent to be married and whether you held yourselves out as married:

Intent to be married

You should have an agreement, whether formal or informal. A formal agreement would be written and signed between the two people. That sometimes happens. An informal agreement could consist of simply calling each other husband and wife.

Holding yourself out to the public

You must present yourself as married to the public. There are many ways of doing that, such as using the same last name when jointly filling out tax returns, opening a bank account, or signing a lease. You can also hold yourself out publicly by telling other people you are married. Something as simple as, “Have you met my wife?” could qualify as holding yourself out publicly.

There might be a debate in probate court about whether you have a common-law marriage. You should work closely with an attorney to find appropriate evidence. The more evidence of intent and holding yourself out, the better.

Divorce and Common Law Marriage

If you are in a common law marriage, you need to get divorced to end it. That might not sound logical to you, but that’s the law. Failure to divorce could mean that any subsequent marriage is invalid as bigamous.

How Common Law Marriage Affects Probate

Probate is the process for administering a dead person’s estate. Everyone has an estate, which can include assets they owned at death, as well as debts they owed while living.

When someone dies, their spouse has certain rights. Simply living together romantically does not give you any rights when your partner dies. For this reason, a valid common law marriage can make a big difference when your spouse passes:

Whether you inherit

You have no right to inherit simply because you are a romantic partner. However, you do have rights to inherit as a common-law spouse. If your spouse died without a will, then a common-law spouse would inherit half of the estate if there are children or all of the estate if there are no children. If you are just a boyfriend or girlfriend, you won’t inherit anything in probate.

Elective share

Imagine your partner leaves you a small gift in their will. They haven’t cut you out of the will entirely, but you don’t receive much. If you are a common-law spouse, you have a right to a larger portion—at least one-third of the estate. This is the elective share.

Of course, you can also inherit assets outside of probate. You might have been a joint owner with right of survivorship, or you could be named as a beneficiary on life insurance or a retirement account. But spouses have specific rights in probate.

What Should You Do to Provide for a Romantic Partner?

We sometimes hear from people who have been living together for a long time. They want to provide for their partner after death and ask what they should do.

One option is to analyze whether you are in a common-law marriage. Did you intend to live as husband and wife? Have you held yourself out as married to the public?

You can also take more affirmative steps to provide for someone:

Create an estate plan. You can leave money and assets to anyone you want, even if you aren’t married to them. You can use a will or trust, or both. Leave your partner your entire estate or some of it.
Pass assets outside probate. You can choose to purchase a life insurance policy and name your partner as your beneficiary. You might also create Payable on Death accounts with your partner as beneficiary. It’s possible to pass many assets to someone else while living or by using a non-probate method.
Get married. You can go to the courthouse and get a marriage license and then have a wedding. There will be no confusion that you are married to this person.

If you are unsure of whether your common law marriage is valid, there is no reason to wait around. Take one of the affirmative steps listed above.

And what if you were previously in a common law marriage and don’t want your spouse to inherit? You need to end it. If you don’t divorce, your former common-law spouse could show up in probate court demanding recognition as your spouse.