The estate of a surviving spouse who filed her elective share claim but died before the determination of her elective share may receive that share. Gallagher v. Evert (S.C. Ct. App., No. 3573, Nov. 25, 2002).
George Evert died on January 5, 1998, survived by his wife, Eleanor, and a son from a previous marriage. Mr. Evert''s will named his son as his sole heir. On May 1, 1998, Mrs. Evert filed to take an elective share of her husband's estate. Mrs. Evert died before the probate court had determined her share, and her son from a previous marriage, Gregg Gallagher, brought an action to recover Mrs. Evert''s elective share as her personal representative..
The probate court denied the elective share, holding that it was intended to provide for the surviving spouse during the remainder of her lifetime, and not intended to augment an estate for the benefit of heirs. The circuit court affirmed the denial of the elective share, placing particular significance on the fact that Mrs. Evert received more than $219,000 in non-probate assets.
The South Carolina Court of Appeals reverses. The court agrees with rulings in other jurisdictions with similar elective share statutes that a surviving spouse's estate may recover the elective share when the surviving spouse dies after making the election. Moreover, the court holds that the type of interest embraced by the elective share is a fee simple estate, not a life estate, and that therefore a surviving spouse's estate may recover the elective share when the surviving spouse dies before the probate court has determined the share. The court rules that the surviving spouse's right to seek an elective share of the estate has nothing to do with whether the spouse''s heirs may benefit from an election or whether the spouse may receive non-probate assets.
For the full text of this decision, go to: https://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=3573 .
Subscribe to the Knowledge Bank.
