Proving or Defending Against a Common Law Marriage Claim in South Carolina Estate Litigation

Understanding Common Law Marriage Claims in SC Probate

When an unmarried individual passes away in South Carolina, their assets typically pass to their children, parents, or siblings. However, estate litigation frequently erupts when a long-term partner suddenly steps forward claiming to be the deceased's 'common-law spouse.' If proven, this status grants the surviving partner massive financial rights, potentially displacing the deceased's children and biological family.

In a monumental shift, the legal landscape changed recently. In the landmark decision of Stone v. Thompson, 428 S.C. 79 (SC Supreme Court 2019), the South Carolina Supreme Court formally abolished the legal recognition of any new common-law marriages. You cannot form a common-law marriage in South Carolina today. However, the ruling was not entirely retroactive. The court clearly stated that common-law marriages validly formed before the 2019 ruling remain fully valid and legally binding.

Depending on the circumstances, the court might award a proven common-law spouse full rights to the estate, or reject a fraudulent claim entirely. Because these cases rely heavily on historical evidence and intent, parties on both sides require sharp representation from local attorneys in our US Lawyers directory to fight their cases in venues like the Spartanburg County Probate Court, Spartanburg or the Lexington County Probate Court, Lexington.

Evidence Needed to Prove Pre-2019 Common Law Marriage

If you are the surviving partner trying to claim your rightful inheritance, you must prove by clear and convincing evidence that before the 2019 ruling, you and the deceased: (1) were legally eligible to marry, (2) possessed a present intent to be married, and (3) held yourselves out to the community as husband and wife.

Cohabitation alone-even for twenty years-does not create a common-law marriage in South Carolina. Your attorney will need to gather documentary evidence proving you presented yourselves to the world as married. The strongest evidence includes joint tax returns filed as 'married,' health insurance policies listing you as a 'spouse,' joint bank accounts, or testimonies from friends and pastors who knew you explicitly as a married couple.

Defending the Estate Against Fraudulent Claims

If you are a child or beneficiary defending your parent's estate against a rogue partner, the defense focuses on breaking the 'intent' requirement. Just because a partner lived with your father and helped pay bills does not make them a spouse. Your legal team will look for inconsistencies.

For example, if the claimant filed their personal income taxes as 'single' or 'head of household' right up until the decedent's death, that is devastating to their claim. Furthermore, if the deceased signed mortgages, car loans, or hospital intake forms explicitly listing themselves as 'single,' your lawyer will use those documents to prove that neither party genuinely intended to be married.

The Elective Share Rights of Recognized Spouses

Why do these legal battles happen? Because the financial stakes are massive. If a claimant successfully proves they were a common-law spouse, they gain profound rights under South Carolina law. If the deceased had no will, the spouse is entitled to at least half of the estate.

Even if the deceased left a valid will that intentionally disinherited the partner, a recognized spouse can invoke S.C. Code Ann. § 62-2-201. This law grants the surviving spouse the right to an 'Elective Share,' which is a guaranteed one-third (1/3) of the deceased's probate estate, regardless of what the will says. To claim this, the spouse must file Form 404ES, South Carolina, Probate Court, Petition for Elective Share within strict statutory deadlines.

How Much Does It Cost to Litigate Marriage Claims?

Litigating the existence of a marriage is a full-blown evidentiary trial. Both sides must be prepared for the financial realities of discovery and witness preparation.

How Long Does the Process Take?

Proving or disproving a common-law marriage can completely stall the probate process. Because it requires extensive fact-finding, gathering decade-old tax returns, and deposing witnesses from the community, the discovery phase alone can take 6 to 10 months. If the case does not settle at mediation, getting a final ruling from a probate judge after a trial can easily take 1 to 2 years.

Frequently Asked Questions (FAQ)