The most important financial planning document is your Last Will and Testament. Most couples have each other as their primary beneficiary in their
wills. After you divorce, you need to make a decision on how to change
your estate planning documents in order to meet your changing situation.
A frequent issue is when parties separate, sometimes for years, but never obtain a divorce. You may execute a new will leaving your spouse nothing. However, in South Carolina that is not possible. In South Carolina, you cannot disinherit your spouse with a Last Will and Testament and they are entitled to claim the Spousal Elective Share of one third of your estate, including any assets placed in a revocable trust
A more common occurrence is when one spouse dies without a will. In that case, the surviving spouse is entitled to one-half of the estate if there are children. If there are no children, then the surviving spouse inherits everything.
You can enter into a contractual agreement whereby each spouse waives their rights to the estate of the other. That is an enforceable agreement and a standard clause in most marital settlement agreements. You need to remember that you are not divorced just because you have appeared in front of the judge. The divorce is not actually granted until the judge signs the Final Order of Divorce. Up until that time, your spouse is still entitled to their share of your estate absent an agreement to the contrary.
Most couples have numerous joint accounts together. Normally, these are credit cards, bank accounts and the home mortgage. If your name is on the account, even if only as an authorized user, you are still responsible for that debt. While there can be an agreement as to which party will pay the debt, you are still just as responsible. For credit cards, if you are not keeping the debt, you should send the company a certified letter stating that you will no longer be responsible for any future charges on that account. However, as long as you are still married, the South Carolina family court can divide the debts and you could still be held responsible.
If it is a joint account with the right of survivorship, then your spouse would automatically inherit the account or property by operation of law regardless of the fact that you are separated or even how long you have been separated. Once you separate, you should review any joint interests and make revisions accordingly.
If you and your spouse separate or plan on divorcing, it is advisable to contact a South Carolina divorce attorney immediately and try to resolve the financial issues by way of a marital settlement agreement.
For an Estate Planning lawyer in Anderson, Greenville, Spartanburg or Pickens County call
L. Wayne Patterson, Attorney at Law
10 Century Dr. Suite B
Greenville, SC 29607
Wayne is a Greenville attorney including probate, elder law, trusts, child custody, special needs trusts and South Carolina divorce. However, he also handles cases in Charleston, Berkeley and Dorchester Counties on a regular basis.
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