Why Do I Need A Will? Doesn't My Spouse Inherit All of My Assets Anyway?

Many people believe if they die while they are married that everything they own will automatically go to their spouse. Although there are state laws in South Carolina known as intestacy rules that apply if someone dies without a will, just because you are married does not mean that your spouse will be the automatic beneficiary of the assets of your estate.

In South Carolina, if you are married and have children and you pass away without a will, half of your estate would pass to your spouse, and one-half would pass to your children. In other words, if you have two children, your spouse would get 50% of everything you own, and each child would get 25% of what you own.

Although this may seem like this is what you wanted for your spouse and kids, without a will, there may be some hiccups in how these laws actually play out. 

Let's examine a few scenarios:

1. Children- if both parents pass away without leaving a will, then the minor children are left without a legal guardian. Although you may assume the children will be left in the care of your loved ones, a court proceeding will be required to appoint a person to serve as the children’s guardian.  As part of that court proceeding, the judge will gather information about the potential guardians and then make a decision based on what she thinks is the placement in the best interest of your children.   A judge’s decision may not always mirror the decision you would have made for your children.

2. Step Children- According the 2010 US Census, between 16-18% of all children live with a step parent.  Many step parents love and raise their step children as their own.  However, the intestacy laws in South Carolina do not provide for step children to inherit anything upon the death of a step parent.

3. Children under the age of 18 - cannot directly inherit property in South Carolina.  Instead, when a minor child receives money as an inheritance, the court will appoint a conservator to handle the money for the child until the child reaches the age of 18.

Furthermore, at the age of 18, your child, whether financially responsible or not, will receive all of their inheritance in one lump sum.  Most parents would prefer that their children receive the money in smaller distributions so that the inheritance is spread out over a period of time as their young adult child matures. These problems can easily be avoided with a little planning, and the creation of a simple testamentary trust.   

4. Soon to be ex-spouses- If you and your spouse are separated, but not legally divorced in South Carolina, and you die without a will, your soon to be ex-spouse will inherit your assets.

If you don’t have children, your soon to be ex-spouse will take 100% of everything you leave behind.  For many, this may not be the most desirable of outcomes. A little legal planning can avert this outcome and ensure that your assets are left to those loved ones of your choosing.

The best way to ensure your loved ones are taken care of in the event the unthinkable should happen is to plan for the unexpected by creating a will or trust.  If you have any questions about which estate plan would be right for you and your family, please don’t hesitate to call us at 803-764-9555.