Have you ever wondered what happens when someone dies without a will? More specifically, have you wondered how estate distribution works among family members? Which relatives would inherit what, if anything?
This article will walk through different scenarios under South Carolina law.
Estate Distribution 101: What is Estate Planning?
What is an estate? Imagine that everything you own–your house, your car, your bank accounts, etc.–is inside of a big box. That box belongs to you and no one else. You can freely take your property out of that box, give it away, or sell it during your life.
Once you die, though, everything in your big, imaginary property box is dumped into a different box called your estate. Your estate now owns everything that you owned during your life. An estate is its own legal entity. Your estate can own and sell property (with some help from the living). It can be sued. It also has to pay taxes.
Unfortunately, you have died. You can’t hand out or sell your property anymore. That’s why you have help from family members or legal professionals during estate distribution after you die. If you have a will before you die, an executor handles your estate. An executor “executes” or carries out your wishes, written in your will.
If you die without a will, the court appoints an administrator, who will “administer” your estate under the estate distributions laws of South Carolina. If you die without a will in South Carolina, the law determines how to distribute your things.
Estate planning is just that–planning for what goes into the estate. Many people choose to pass on family heirlooms before they die to make their estate easier to distribute. The less an estate has, the sooner everything can be wrapped up. The estate planning process is when you plan with your spouse and attorney on what things should go inside the estate.
Estate Distribution and Dying Without a Will
If you die without a will, you “die intestate.” If you die without a will in South Carolina, the court distributes your property according to a statute. The method of estate distribution South Carolina uses is called per capita by representation.
This means that certain groups of family members get equal shares of your estate. The groups have different priority levels in taking things from an estate.
This is the order of priority for different groups in South Carolina:
- Everything to your spouse, if you don’t have any kids
- If you have kids, then 1/2 to your spouse, 1/2 to your kids.
- Without a spouse (by death, divorce, or non-marriage), your kids get everything.
- If you’re unmarried don’t have kids, then everything goes to your living parents.
- If you don’t have living parents, then your siblings get everything.
- This one is rare: If you have no spouse, children, parents, or siblings, everything goes to your grandparents.
Estate distribution under “per capita” rules isn’t difficult. Per capita means that each person in the group receiving an estate distribution will get an equal share of the estate. There’s a caveat–only living members of a group get to inherit. For example, if you had three children, but one died before you, your two living children divide your estate equally.
But, if your deceased child had children (i.e., you have living grandchildren from your deceased child), that share passes through to the grandchildren.)
Confusing? You bet. But these scenarios should make it easier to understand.
Estate Distribution Scenarios:
Scenario 1: When you die, you have living children, but no living spouse.
Under this scenario, your entire estate would go to your children in equal amounts. If you had two children, each child would get 1/2 of your estate. If you had 5 living children, then each child would get 1/5, or 20% of the estate.
But what if one of your children died before you?
Here, it depends on whether your deceased child had any children of their own. If that child had no children (i.e., you had no grandchildren), then according to estate distribution rules, your living children “take the estate” in equal amounts.
But if your now-deceased child had children–your grandchildren, the grandchildren would equally divide their deceased parent’s share.
But what if ALL of your children died before you?
Again, it depends on whether your deceased children had children of their own. If none of your children had kids of their own, their shares of your estate would go to your parents (or siblings, or grandparents).
Here’s where it gets tricky. Let’s assume you had two kids, Anna and Brandon. Anna had one child. Brandon had two children. Then, both Anna and Brandon died in a tragic accident.
Anna’s child would get 50% of your estate, and Brandon’s two children would get the other 50 percent. Each one of Brandon’s children would get 25% of the estate
Scenario 2: When you die, you have a living spouse and children
This is almost just like before, except your spouse gets a 50% cut. The other half of your estate is divided aInmong your living children (and grandchildren if one of your children died before you). Dividing the estate works just the same as above. The only difference is that the children’s shares are now smaller because of your spouse’s 50% share.
Scenario 3: You die without a spouse and without children
When someone dies, their estate passes to a spouse and to descendants. But in this scenario, you have no descendants. There are no branches down your family tree to pass your things. You can only pass them up the family line to your parents. Therefore, your parents would inherit your entire estate.
You get the same result if only one of your parents is alive. Your only living parent would get 100% of your estate. The law considers your parents as one single entity. But if they are divorced, then a court will probably award 50% to your mom, and 50% to your dad.
Scenario 4: You die without a spouse or children, and you have no living parents.
In this case, you have no spouse, and no children to pass things on to. You also don’t have parents to pass things up to. So what happens? You pass it laterally. Your siblings get your estate. Estate distribution shares among your siblings are just as if you have living children. Your siblings will get equal shares of your estate.
But let’s say you had two brothers, Andrew and Bob. Bob died before you. Andrew is your only surviving brother. Even if Bob had children (i.e., your nieces or nephews), Andrew inherits everything through your estate distribution.
Scenario 5: The Catastrophic Scenario
In this very rare scenario, almost every person in your family dies before you:
- Your spouse dies, you are divorced, or never married
- You don’t have any kids, or they all died.
- Both of your parents died
- You have no siblings, or they all died before you
You have no descendants, direct ascendants up the family line (your parents), or siblings. In this case, your grandparents–maternal and paternal–get your estate. Your paternal grandparents would get half of your estate, and your maternal grandparents would get the other half.
But what if your paternal grandparents died before you?
In this case, your paternal grandparents’ children–your aunts and uncles on your dad’s side of the family–would inherit your grandparents’ share. If there are no aunts or uncles, then the maternal grandparents inherit everything.
If all of your grandparents die before you, then your estate passes further up your family line. This means your great-grandparents would inherit. This scenario is very rare!
But what if you have no family left at all?
If you don’t have any more living relatives, then your estate goes to the state of South Carolina. The state then sells off your belongings at an estate sale. If you die without a will, you don’t get a chance to leave your things to your favorite charity or your church.
Unusual Estate Distribution Scenarios
Estate Distribution through intestacy looks at the linear family. But the modern family today is not so linear. This section will handle some of the unusual questions about estate distribution and the modern family.
How are Step-Children Handled in Estate Distribution?
Step-children can easily inherit when you provide for them in a will. But if you die without a will, then step-children can’t inherit anything.
For example: Let’s say that Anna married Bob. Anna and Bob have one child, Christina. Bob also had a son from a prior marriage, David. Therefore, David is Anna’s step-son. Anna loves David as if he’s one of her own children. But Anna dies without a will. The estate distribution works like this:
- Anna’s husband, Bob, will get 50% of Anna’s estate; and
- Anna and Bob’s daughter Christina will get the other 50%.
If you die without a will, a step-child cannot get anything though intestacy. The law only looks at biological children. That is…unless they are adopted.
What about Adopted Children?
The law used to ignore adopted children. It used to take a strict approach: only biological children can inherit. Thankfully, the law has changed here.
Adopted children can inherit just like natural-born children from their adoptive parents. Once a child is adopted, the adopted parents are now seen as the child’s legal parents. After adoption, the law severs the adopted child’s connection to their biological parents.
Therefore, an adopted child cannot inherit from their biological parent through intestacy. Likewise, a biological parent cannot inherit through intestacy from a child they gave up for adoption.
There is one minor exception. If the relationship between the biological parent and the adopted child remained intact, then the adopted child could inherit from a deceased biological parent.
What About Children Born Out of Wedlock?
This is an interesting issue. It depends on whether the deceased parent is the mother or the father.
A child born out of wedlock is considered a legitimate child of the mother. Therefore, that child can inherit from their mother through intestacy.
But it’s different when inheriting from the father. A child would be treated as the legitimate child of the father only if one of two things happened:
- The natural parents participated in a marriage ceremony. The marriage “legitimizes” the child; or
- The father establishes paternity through the court.
This difference in treatment kind of makes sense. It’s easy to establish maternity. The mother carried the child for 9 months and suffered the pain of childbirth.
But establishing fatherhood is a bit harder. Marriage is the easiest way. After getting married, the law presumes that a woman’s husband is the father of her kids most of the time. Otherwise, the father needs to get a court order saying that he is the child’s father. Filing a paternity case establishes legal fatherhood through DNA tests. They also handle child custody and child support issues.
An child born out of wedlock can establish paternity after their dad dies. However, this has to be done shortly after the father dies.
On the flip side, fathers can only inherit from their children born out of wedlock if they treated the child openly as his own child. If the father refused to pay child support for the child, then the father can’t inherit.
What about Children Born After a Parent’s Death?
Sometimes, a parent dies before their child is born. If one parent dies, it’s usually the father. However, it can also happen with mothers nowadays through assisted reproductive technologies like surrogacy.
In South Carolina, a child can inherit from a deceased parent provided that they were born within 10 months of their parent’s death.
This leaves some open questions. Let’s say Anna and Bob wanted to have a child later on in their life. Anna froze some of her eggs. Bob froze some of his sperm. Then, Bob dies. Not long after Bob’s death, Anna becomes pregnant using Bob’s frozen sperm. Anna gives birth to the child, Chris 9 months later, about 1 year after Bob’s death.
In this example, Chris probably can’t inherit anything from Bob. Even though Bob is Chris’s biological father, Chris missed the 10-month cut-off period. The law on assisted reproductive technologies is very new, and very unsettled. Courts may later find that Chris could inherit a portion Bob’s estate. But right now, Chris wouldn’t inherit anything.
What about embryos? Would a frozen embryo receive an estate distribution? Last year, Modern Family star Sofia Veraga sued her ex-fiance to prevent him from using their frozen embryos. The couple froze several embryos for in vitro fertilization.
Let’s say that Anna and Bob froze several embryos in the hope of having a child later in life through in vitro fertilization. The embryo is created while Bob is alive. If Bob died, and Anna used the embryo they made together, would that child be able to inherit from Bob?
Probably not. But then again, this is a very new area of law. There are a lot of questions to answer!
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