SC Supreme Court Clarifies Elective Share Rights

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SC Supreme Court Clarifies Elective Share Rights

SC Supreme Court Clarifies Elective Share Rights: Temporary Orders Don’t Cut It
Weeks v. Weeks Reaffirms Strong Protections for Surviving Spouses
The South Carolina Supreme Court issued an important decision on December 18, 2024, that clarifies when a surviving spouse loses the right to claim an elective share of their deceased spouse’s estate. In Weeks v. Weeks, Opinion No. 28247, the Court sent a clear message: temporary family court orders—no matter how comprehensive—cannot terminate elective share rights.

The Facts
Deborah and James Weeks married in 1998 and had what the Court described as a “stormy” relationship. They engaged in extensive family court litigation, with multiple temporary orders issued addressing their marital assets. However, all actions were eventually dismissed in 2012, and the couple remained legally married.

When James died in 2017, his 2001 will left everything to his two children from a previous marriage. Deborah, still his legal wife, filed for an elective share—her statutory right to claim one-third of his estate as the surviving spouse.

The probate court denied her claim, reasoning that the temporary family court orders had “essentially and for all practical purposes” terminated all marital rights between the spouses. The circuit court affirmed, but the Court of Appeals reversed. The Supreme Court granted certiorari to resolve the issue.

The Law on Elective Share Rights
Under South Carolina law, a surviving spouse is entitled to claim one-third of the deceased spouse’s estate (S.C. Code Ann. § 62-2-201). However, the statute excludes certain individuals from the definition of “surviving spouse.”

The key provision at issue was S.C. Code Ann. § 62-2-802(b)(3), which excludes “an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent’s death.”

The Supreme Court’s Ruling
The Supreme Court was unequivocal: the probate court made reversible error in denying Deborah’s elective share claim.

Why the Temporary Orders Didn’t Disqualify Deborah
The Court emphasized that temporary orders, by their very nature, cannot terminate marital property rights:

“Temporary, pendente lite family court orders are, by definition, temporary—they neither decide any issue with finality nor affect a substantial right.”

The Court noted that there is no such creature as a “temporary” equitable distribution order. Equitable distribution occurs only by a final order of the family court. The temporary orders in the Weeks case showed that the parties had reached temporary agreements on some assets but planned to return to court for final resolution. Indeed, the last temporary order required the parties to “cooperate with the identification and appraisement of all marital property”—hardly the language of finality.

Deborah Did Not Waive Her Rights
The Court also addressed whether Deborah had waived her elective share rights under S.C. Code Ann. § 62-2-204. The statute allows waiver in two ways:

Subsection (A) requires “a written contract, agreement, or waiver voluntarily signed by the waiving party after fair and reasonable disclosures” in writing of the other party’s property and financial obligations.

Subsection (B) provides that “a complete property settlement entered into after or in anticipation of separation or divorce” constitutes a waiver of elective share rights.

The Court found that neither provision applied. There was no signed waiver or written disclosure as required by subsection (A). And there was no “complete property settlement” under subsection (B)—the temporary orders were ephemeral and “disappeared when the domestic actions were dismissed.”

No Such Thing as Implied Waiver
Importantly, the Court took the opportunity to reiterate that elective share rights may only be waived by express compliance with § 62-2-204. There is no “implied waiver” by conduct, even where a surviving spouse engaged in property transfers during separation.

Practical Implications for Family Law Practitioners
This decision has several important implications for attorneys handling divorce and estate planning matters:

1. Temporary Orders Are Never Enough
No matter how detailed or comprehensive temporary orders may be, they cannot terminate a spouse’s elective share rights. Only a final order of divorce or a final order confirming equitable distribution will suffice.

2. Finalize or Risk the Elective Share
If clients separate but remain married without finalizing their divorce or property settlement, the surviving spouse retains full elective share rights upon the other spouse’s death. This is true even if the parties lived apart for years and even if they had detailed temporary agreements in place.

3. Estate Planning Complications
Clients who are separated but not divorced should be counseled that their spouse will likely be entitled to an elective share regardless of their will provisions. The only way to prevent this is to obtain a final divorce or equitable distribution order, or to comply with the strict waiver requirements of § 62-2-204.

4. Waiver Must Be Express and In Writing
To validly waive elective share rights, the waiver must: (1) be in writing; (2) be voluntarily signed by the waiving party; and (3) follow fair and reasonable written disclosure of the other party’s property and financial obligations. The Court has repeatedly rejected any theory of implied waiver.

5. Courts Cannot Impose Their Own Sense of Fairness
The Supreme Court made clear that judges cannot substitute their own sense of fairness for the statutory requirements. As the Court stated, “Sometimes the law’s boundaries do not parallel what some view as fair. The probate court, believing the fair thing to do was grant Deborah nothing, set the law aside and imposed its own idea of fairness. This it cannot do.”

Key Takeaways
• Temporary family court orders do not terminate elective share rights, no matter how comprehensive they may be.
• Only final orders matter: A surviving spouse retains elective share rights unless there is a final divorce decree or a final order confirming equitable distribution.
• Waiver requires strict compliance with S.C. Code Ann. § 62-2-204: written agreement, voluntary signature, and written financial disclosure.
• No implied waiver: Conduct alone cannot waive elective share rights, even if parties separated and divided some property.
• Separated clients need clear advice: Clients who separate but don’t finalize their divorce leave their estates vulnerable to elective share claims.

Conclusion
Weeks v. Weeks reinforces the strength of elective share protections in South Carolina. The decision makes clear that the statutory requirements must be strictly followed—there are no shortcuts, and courts cannot bend the rules based on equitable considerations.

For family law practitioners, this case underscores the importance of finalizing divorce and property settlements rather than leaving clients in legal limbo with temporary orders. For estate planning attorneys, it’s a reminder that separated spouses pose unique challenges that must be addressed through proper legal mechanisms, not assumptions about what seems fair.

Case Citation: Weeks v. Weeks, Opinion No. 28247 (S.C. Dec. 18, 2024)
If you have questions about elective share rights, divorce proceedings, or estate planning in South Carolina, contact Klok Law Firm LLC for experienced guidance.

By Suzanne Klok|2025-11-12T16:44:37+00:00January 15th, 2025|Elective Share Rights, Equitable Distribution/Property Division, Family Law|Comments Off on SC Supreme Court Clarifies Elective Share Rights

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About the Author: Suzanne Klok

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SC Supreme Court Clarifies Elective Share Rights: Temporary Orders Don’t Cut It
Weeks v. Weeks Reaffirms Strong Protections for Surviving Spouses
The South Carolina Supreme Court issued an important decision on December 18, 2024, that clarifies when a surviving spouse loses the right to claim an elective share of their deceased spouse’s estate. In Weeks v. Weeks, Opinion No. 28247, the Court sent a clear message: temporary family court orders—no matter how comprehensive—cannot terminate elective share rights.

The Facts
Deborah and James Weeks married in 1998 and had what the Court described as a “stormy” relationship. They engaged in extensive family court litigation, with multiple temporary orders issued addressing their marital assets. However, all actions were eventually dismissed in 2012, and the couple remained legally married.

When James died in 2017, his 2001 will left everything to his two children from a previous marriage. Deborah, still his legal wife, filed for an elective share—her statutory right to claim one-third of his estate as the surviving spouse.

The probate court denied her claim, reasoning that the temporary family court orders had “essentially and for all practical purposes” terminated all marital rights between the spouses. The circuit court affirmed, but the Court of Appeals reversed. The Supreme Court granted certiorari to resolve the issue.

The Law on Elective Share Rights
Under South Carolina law, a surviving spouse is entitled to claim one-third of the deceased spouse’s estate (S.C. Code Ann. § 62-2-201). However, the statute excludes certain individuals from the definition of “surviving spouse.”

The key provision at issue was S.C. Code Ann. § 62-2-802(b)(3), which excludes “an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent’s death.”

The Supreme Court’s Ruling
The Supreme Court was unequivocal: the probate court made reversible error in denying Deborah’s elective share claim.

Why the Temporary Orders Didn’t Disqualify Deborah
The Court emphasized that temporary orders, by their very nature, cannot terminate marital property rights:

“Temporary, pendente lite family court orders are, by definition, temporary—they neither decide any issue with finality nor affect a substantial right.”

The Court noted that there is no such creature as a “temporary” equitable distribution order. Equitable distribution occurs only by a final order of the family court. The temporary orders in the Weeks case showed that the parties had reached temporary agreements on some assets but planned to return to court for final resolution. Indeed, the last temporary order required the parties to “cooperate with the identification and appraisement of all marital property”—hardly the language of finality.

Deborah Did Not Waive Her Rights
The Court also addressed whether Deborah had waived her elective share rights under S.C. Code Ann. § 62-2-204. The statute allows waiver in two ways:

Subsection (A) requires “a written contract, agreement, or waiver voluntarily signed by the waiving party after fair and reasonable disclosures” in writing of the other party’s property and financial obligations.

Subsection (B) provides that “a complete property settlement entered into after or in anticipation of separation or divorce” constitutes a waiver of elective share rights.

The Court found that neither provision applied. There was no signed waiver or written disclosure as required by subsection (A). And there was no “complete property settlement” under subsection (B)—the temporary orders were ephemeral and “disappeared when the domestic actions were dismissed.”

No Such Thing as Implied Waiver
Importantly, the Court took the opportunity to reiterate that elective share rights may only be waived by express compliance with § 62-2-204. There is no “implied waiver” by conduct, even where a surviving spouse engaged in property transfers during separation.

Practical Implications for Family Law Practitioners
This decision has several important implications for attorneys handling divorce and estate planning matters:

1. Temporary Orders Are Never Enough
No matter how detailed or comprehensive temporary orders may be, they cannot terminate a spouse’s elective share rights. Only a final order of divorce or a final order confirming equitable distribution will suffice.

2. Finalize or Risk the Elective Share
If clients separate but remain married without finalizing their divorce or property settlement, the surviving spouse retains full elective share rights upon the other spouse’s death. This is true even if the parties lived apart for years and even if they had detailed temporary agreements in place.

3. Estate Planning Complications
Clients who are separated but not divorced should be counseled that their spouse will likely be entitled to an elective share regardless of their will provisions. The only way to prevent this is to obtain a final divorce or equitable distribution order, or to comply with the strict waiver requirements of § 62-2-204.

4. Waiver Must Be Express and In Writing
To validly waive elective share rights, the waiver must: (1) be in writing; (2) be voluntarily signed by the waiving party; and (3) follow fair and reasonable written disclosure of the other party’s property and financial obligations. The Court has repeatedly rejected any theory of implied waiver.

5. Courts Cannot Impose Their Own Sense of Fairness
The Supreme Court made clear that judges cannot substitute their own sense of fairness for the statutory requirements. As the Court stated, “Sometimes the law’s boundaries do not parallel what some view as fair. The probate court, believing the fair thing to do was grant Deborah nothing, set the law aside and imposed its own idea of fairness. This it cannot do.”

Key Takeaways
• Temporary family court orders do not terminate elective share rights, no matter how comprehensive they may be.
• Only final orders matter: A surviving spouse retains elective share rights unless there is a final divorce decree or a final order confirming equitable distribution.
• Waiver requires strict compliance with S.C. Code Ann. § 62-2-204: written agreement, voluntary signature, and written financial disclosure.
• No implied waiver: Conduct alone cannot waive elective share rights, even if parties separated and divided some property.
• Separated clients need clear advice: Clients who separate but don’t finalize their divorce leave their estates vulnerable to elective share claims.

Conclusion
Weeks v. Weeks reinforces the strength of elective share protections in South Carolina. The decision makes clear that the statutory requirements must be strictly followed—there are no shortcuts, and courts cannot bend the rules based on equitable considerations.

For family law practitioners, this case underscores the importance of finalizing divorce and property settlements rather than leaving clients in legal limbo with temporary orders. For estate planning attorneys, it’s a reminder that separated spouses pose unique challenges that must be addressed through proper legal mechanisms, not assumptions about what seems fair.

Case Citation: Weeks v. Weeks, Opinion No. 28247 (S.C. Dec. 18, 2024)
If you have questions about elective share rights, divorce proceedings, or estate planning in South Carolina, contact Klok Law Firm LLC for experienced guidance.