Omitted spouses. What do they get?

The SCCOA recently ruled that an omitted spouse was entitled to inherit from her deceased husband in In re: Estate of Stephen Ward, Ward v. Ward. The case serves as an important reminder: If you want to have a say in what happens to your property when you die, you need to regularly update your will.

Background

When Stephen Ward died, he was on his fourth wife—Mary. Before Stephen met Mary, he was married to a woman named Nancy. When Nancy and Stephen were married, they executed several estate planning documents that generally provided for the surviving spouse to inherit everything from the deceased spouse. The documents executed by Stephen and Nancy further provided that when the surviving spouse died, their children would inherit what remained of their estate.

The will that Stephen wrote while married to Nancy was the last will he ever had. Interestingly, perhaps in part because Nancy was Stephen’s third wife, they entered into an agreement that between the two of them, if the surviving spouse remarried, they would require their new spouse to waive any elective share upon the surviving spouse’s death and that the surviving spouse would not do anything to alter the agreement between Nancy and Stephen. In other words, there appears to have been an intent by both Stephen and Nancy that remarriage after the death of one of them would not affect the validity of their agreement, and that their new spouse would receive nothing.

Ultimately Nancy died before Stephen. Two years later, he married Mary. Stephen did not execute a new will but he also didn’t comply with the technical requirements of his previous agreement with Nancy. Stephen died three years after marrying Mary and Mary sought to receive an “omitted spouse” share of his estate. Stephen’s children opposed Mary receiving an omitted spouse share and argued that Stephen intentionally omitted her from his will and/or that she was provided for outside of the will.

After a trial in the probate court, the probate judge determined that Mary was entitled to an omitted spouse share of Stephen’s estate. The Court of Appeals upheld the probate judge’s decision to give Mary an omitted spouse share but it was a 2-1 split decision.

Omitted Spouse

The general goal of executing a deceased person’s estate is to faithfully carry out their intent. And the best evidence of what a person intends is expected to be found in their written will. However, South Carolina has a law that specifically provides for “omitted spouses” to inherit from their spouse even when they have been left out of the will.

If a person dies while married and wrote their will prior to the marriage, the surviving spouse who was omitted from the will is entitled to a share of the estate that they would have received if the deceased person left no will. That is extremely significant as that share is likely to be at least 50% and could be as much as 100%. SC Code § 62-2-102. But, an omitted spouse is not entitled to this share if the omission appears to have been intentional, or the decedent provided for the omitted spouse outside of the will.

Majority

The dispute over Mary’s ability to inherit from Stephen hinged on whether she was intentionally omitted from his will and whether Stephen provided for her outside of the will. The Court of Appeals pointed out that Stephen could not have intentionally omitted Mary from his will because the will was written before he even met her. The majority cited to Miles v. Miles, a South Carolina Supreme Court case that held that “a spouse has not been ‘provided for’ within the meaning of § 62-2-301 unless the decedent considered the surviving spouse in that capacity at the time the will was executed.”

It seems like this requirement could rarely if ever be met by a surviving spouse who is omitted from a will. I think this citation may be a little off base as the Miles case was referring to the second requirement of the omitted spouse statute (provided for outside of the will) and not the first requirement (the omission was unintentional). The majority also found it significant that Stephen didn't execute the specific documents that his previous agreement with Nancy required him to execute upon his remarriage. So, it may be that Stephen intended to abandon his agreement with Nancy.

The Court of Appeals also found that Stephen’s estate was valued at nearly $1 million. So even though Stephen had provided some monetary benefits to Mary outside of his will, these benefits were not nearly enough to indicate that their purpose was to provide for Mary in lieu of her receiving an omitted spouse share of at least half of his entire estate.

Dissent

Judge Geathers dissented. While he agreed that any monetary benefit bequeathed to Mary outside of the will was not significant enough to be in lieu of her exclusion from Stephen’s will, Judge Geathers was convinced that Mary’s omission from Stephen’s will was intentional.

The omitted spouse statute presumes that a deceased person would have wanted their surviving spouse to inherit from them even if they neglected to update their will after marriage. In other words, the statute presumes that a person likely would intend to leave their surviving spouse with at least something. But, there must be evidence presented to that effect.

In Stephen’s case, Judge Geathers agreed with the children that Stephen expressed an intention to omit Mary. His agreement with Nancy clearly contemplated the possibility of a future marriage and Nancy and Stephen both indicated their intention that any subsequent spouse was to inherit nothing. Additionally, the agreement between Nancy and Stephen clearly indicated that they both intended for their surviving children to receive everything in the estate that remained after their deaths.

Conclusion

In probate cases, the Court is not in a position to judge what is fair or unfair in terms of who inherits what. Instead, their job is to carry out the intentions of the deceased person, regardless of how unfair they may seem. This task is significantly more difficult in cases where major life changes occur after a person executes their last will.

The truth is nobody really knows whether Stephen wanted Mary to receive half of his estate or nothing. The courts have to make their best judgment as to his intent based on the information presented to them. Judge Geathers probably has the better case to make here and a petition for rehearing is still pending in the Court of Appeals. I suspect a petition for Supreme Court review will be coming soon.

adam@ruffinappeals.com

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