How Do Married Couples Structure Estate Plans in South Carolina?

Building a life together in the Upstate involves years of shared dedication, financial planning, and accumulation. Whether you have established a family home in the quiet neighborhoods of Simpsonville, built a thriving business in Spartanburg, or invested in vacation property along Lake Keowee, the desire to protect what you have built for your partner is a natural instinct. However, the legal path to ensuring your spouse is protected is rarely as straightforward as couples assume.

Many married couples in South Carolina operate under the dangerous misconception that “everything automatically goes to my spouse” if one of them passes away. While this sentiment is common, the actual laws governing probate and inheritance in South Carolina often dictate a different, more complicated reality. Without a deliberate and properly structured estate plan, the default laws of the state can create surprising financial burdens for a surviving spouse, particularly when minor children, blended families, or significant assets are involved.

Do My Spouse and I Need Separate Wills in South Carolina?

While joint wills generally exist, South Carolina attorneys strongly advise married couples to execute separate, reciprocal wills. Separate wills provide critical flexibility, allowing the surviving spouse to amend their estate plan after the first spouse’s death to account for life changes, whereas joint wills can inadvertently lock assets and create significant legal complications for the survivor.

The Hidden Dangers of the “Joint Will”

A “joint will” is a single document signed by both spouses, intended to dictate the distribution of assets for both parties. On the surface, this appeals to many couples who view their assets as completely shared. It seems efficient and unified. However, in legal practice, joint wills are often referred to as “contractual wills,” and they can be disastrous for the surviving spouse.

The rigidity of a joint will is its greatest flaw. When the first spouse passes away, the joint will essentially becomes a binding contract. The surviving spouse may be legally barred from changing the terms of the will, even if they live for another twenty or thirty years. Consider a scenario where a couple in North Main creates a joint will leaving everything to their children equally.

If the husband passes away and the wife lives another two decades, she might face new realities: perhaps one child develops a serious substance abuse problem, or another child becomes incredibly wealthy and no longer needs the inheritance. Under a joint will, the widow may be powerless to put the troubled child’s share into a protective trust or redirect assets to grandchildren who need help with college tuition. She is handcuffed by a document signed decades earlier.

Reciprocal Wills: The Preferred Standard

To avoid these pitfalls, the standard best practice for married couples in South Carolina is to create “reciprocal” wills. In this structure, the husband has his own will, and the wife has her own will. The documents are legally separate but mirror each other in their provisions. Typically, the husband’s will leaves his entire estate to his wife, and the wife’s will leaves her entire estate to her husband. If they pass simultaneously, or upon the second death, both wills direct the assets to the same beneficiaries (usually the children).

This approach offers three distinct advantages:

• Flexibility for the Survivor: If the husband passes away, the wife inherits his estate. Because her will is a separate document, she retains the right to update it as life evolves. If she remarries, needs to sell the family home to move into a facility like The Woodlands at Furman, or wants to change the executor, she is free to do so.
• Privacy: When a will is probated, it becomes a public record at the county courthouse. With reciprocal wills, only the will of the deceased spouse is filed initially. The surviving spouse’s estate plan remains private until their eventual death.
• Simplicity in Probate: Filing a single joint document for two different deaths occurring years apart can confuse the probate process. Separate wills allow for a cleaner administrative process at the Greenville County Probate Court.

What Happens If One Spouse Dies Without a Will in South Carolina?

If a married person dies without a will in South Carolina, the surviving spouse does not automatically inherit everything if the deceased has children. Under state intestacy laws, the spouse inherits only 50% of the probate assets, while the children inherit the remaining 50%, regardless of their age, potentially creating complex legal hurdles for the family.

The “Intestacy Trap” for Married Couples

The most pervasive myth in estate planning is that marriage acts as a “will substitute.” Many couples believe that if one dies, the other simply takes over ownership of all assets. In South Carolina, this is legally incorrect for any asset held in the deceased spouse’s individual name.

Under South Carolina Code § 62-2-102, the laws of “intestate succession” determine who gets what when there is no will. If you pass away, leaving a spouse and children:

• The Surviving Spouse receives 50% of the estate.
• The Children share the remaining 50%.

This split applies even if the children are infants. It creates a legal nightmare known as the “minor inheritance problem.”

Real-World Consequences for Upstate Families

Imagine a husband owns a rental property in Travelers Rest or a vacation cabin in the Blue Ridge Mountains in his own name. If he passes away without a will, his wife now owns that property jointly with their two minor children.

Because minors cannot legally own or manage real estate, the surviving mother cannot simply sell the property or refinance the mortgage to pay bills. She would likely be required to petition the Probate Court to be appointed as the “Conservator” for her own children. This is a court-supervised process that is expensive, time-consuming, and invasive. The court may require her to post a bond, file annual accountings of every penny spent, and essentially ask a judge for permission to use the inheritance to support the children.

Furthermore, once those children turn 18, they are entitled to their share of the money or property outright. Most parents would agree that handing a significant lump sum of cash to an 18-year-old is rarely a wise financial decision. A properly structured estate plan avoids this statutory distribution entirely, ensuring the surviving spouse maintains control and the children are provided for according to the parents’ actual wishes, not the state’s default formulas.

Is a Joint Revocable Trust Better Than Separate Trusts for Married Couples?

A joint revocable trust is often the superior choice for couples with long-term marriages and commingled assets due to its simplicity and streamlined administration. Conversely, separate trusts are typically necessary for blended families, couples with significant separate property, or high-net-worth individuals requiring advanced tax planning and asset protection strategies.

The Case for Joint Revocable Trusts

For many couples in the Upstate who have been married for decades, finances are completely shared. They view their bank accounts, their home in Five Forks, and their investments as “ours” rather than “his” and “hers.” For these couples, a Joint Revocable Living Trust (RLT) often makes the most sense.

In a Joint RLT, both spouses serve as co-trustees and co-grantors. The trust holds title to their assets, but they maintain full control. They can buy, sell, spend, and invest exactly as they did before.

• Unified Management: There is only one trust agreement to draft, one set of terms to understand, and one bucket to fund. This simplicity reduces legal fees and administrative headaches.
• Seamless Transition: If one spouse becomes incapacitated or passes away, the other spouse automatically continues as the sole trustee. There is no need to change titles on bank accounts or deeds; the trust already owns them.
• Complete Probate Avoidance: Just like separate trusts, a joint trust keeps the family’s affairs out of the probate court. This protects the family’s privacy and avoids the statutory probate fees calculated on the value of the estate.

The Case for Separate Trusts

However, “simple” is not always “safe.” Separate trusts—where the husband creates one trust and the wife creates another—are distinct legal entities. This structure is essential in specific scenarios frequently encountered by South Carolina families.

• Blended Families and Remarriage: If one or both spouses have children from a prior relationship, a joint trust can be risky. A joint trust usually grants the survivor full control. The surviving stepparent could potentially disinherit the deceased spouse’s children in favor of their own. Separate trusts allow a spouse to “lock down” their portion of the assets upon death, ensuring that their biological children eventually inherit, while still allowing the surviving spouse to use the income.
• Creditor and Liability Protection: For professionals in high-liability fields—such as neurosurgeons at Prisma Health or business owners in construction or manufacturing—separate trusts can be a component of an asset protection strategy. If one spouse is sued, assets held in the other spouse’s separate trust (if properly structured and not commingled) may be harder for creditors to reach.
• Estate Tax Planning: While the federal estate tax exemption is currently high, it is scheduled to sunset in 2026. For high-net-worth families in Greenville, separate trusts allow for more precise “credit shelter” planning. Upon the first death, the deceased spouse’s assets can flow into a specialized irrevocable sub-trust that utilizes their tax exemption, keeping that wealth out of the surviving spouse’s taxable estate and protecting it from future estate taxes.

Specialized Structures: The Elective Share and QTIP Trusts

Estate planning is not merely about dividing assets; it is about balancing the rights of family members. South Carolina law includes specific provisions to protect spouses from disinheritance, which must be factored into any plan.

The Elective Share: Preventing Disinheritance

South Carolina is not a community property state; it is an equitable distribution state. However, a spouse cannot be completely written out of a will. Under the “elective share” statute (S.C. Code § 62-2-201), a surviving spouse has a statutory right to claim one-third of the deceased spouse’s probate estate, regardless of what the will says.

This is particularly relevant for couples who are separated but not legally divorced. If a husband moves out of the family home in Greer and writes a new will leaving everything to his brother, but dies before the divorce is final, his estranged wife can still claim her one-third share. Couples who wish to alter this right must sign a valid prenuptial or postnuptial agreement waiving the elective share.

The QTIP Trust: Balancing Support and Control

For couples in second marriages, the Qualified Terminable Interest Property (QTIP) Trust is a vital tool. It answers a difficult question: “How do I make sure my spouse is taken care of when I die, but guarantee that the rest of the money goes to my kids from my first marriage?”

In a QTIP structure, when the first spouse dies, their assets move into a trust. The surviving spouse receives the income from the trust for the rest of their life and can even live in the trust-owned home. However, the surviving spouse cannot sell the assets to give the money to a new partner or change the beneficiaries. Upon the surviving spouse’s death, the assets legally must pass to the children of the first spouse. This structure provides peace of mind for both the spouse and the children, minimizing conflict during an already emotional time.

Incapacity Planning: Powers of Attorney are Critical

While most people focus on what happens after death, a comprehensive estate plan for married couples must also address what happens during life. Marriage does not automatically grant you the legal authority to act for your spouse if they are incapacitated.

The Healthcare Power of Attorney

If a spouse is injured in a car accident on I-85 or suffers a sudden stroke, the other spouse needs immediate legal authority to make medical decisions. Without a Healthcare Power of Attorney, South Carolina law dictates the priority of decision-makers (statutory surrogates), but this can still lead to delays or conflicts with other family members. A Healthcare Power of Attorney (HCPOA) explicitly names your spouse as your agent, allowing them to access medical records, authorize treatments, and advocate for your care at facilities like Bon Secours St. Francis or Spartanburg Medical Center without bureaucratic hurdles.

The Durable Financial Power of Attorney

The financial side of incapacity is equally critical. If a husband develops dementia or is in a coma, his wife cannot automatically access his individual IRA, sign his name on a real estate deed, or even speak to the IRS on his behalf. Joint ownership of a bank account helps with that specific account, but it does not help with retirement accounts, insurance policies, or tax filings.

A Durable Power of Attorney grants your spouse the authority to manage your financial affairs if you cannot. It allows them to pay bills, manage investments, and even engage in Medicaid planning if long-term care becomes necessary. Without this document, the family would be forced to petition the Probate Court for a “Conservatorship,” a public, restrictive, and expensive process where a judge—not your spouse—has the final say on how your money is spent.

Taking the Next Step for Your Family

There is no single “correct” way for a married couple to structure an estate plan. The young professionals buying their first home in the Augusta Road area have different concerns than the retired couple in Greer looking to protect assets from nursing home costs. However, the common thread is the need for control and clarity.

At the De Bruin Law Firm, we believe that an estate plan is not just a stack of documents; it is a shield for the people you love. It ensures that your spouse is protected from intestacy laws, that your children are provided for without court interference, and that your family’s private business remains private. We help couples across the Upstate navigate these complex decisions, ensuring that the legal structure we build is resilient enough to handle whatever life brings.

If you have questions about how to best structure your estate plan as a married couple, or if you need to review existing documents that may no longer fit your life, we invite you to contact us at (864) 982-5930.