Domestic Relations – Elective Share – Surviving Spouse

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The court of appeals was right in holding that Wife was entitled to the elective share.

We affirmed the opinion of the court of appeals reversing the denial of Wife’s elective share claim and remanded the case to the probate court.

Wife Deborah T. Weeks and Husband James R. Weeks, Jr. married in 1998. James died in 2017. His 2001 will left everything to his two children from a previous marriage. At the time of James’ death, he was still legally married to Deborah. Their relationship had been stormy. Deborah began several actions in the family court. Several temporary orders were issued, but all the actions were eventually dismissed in 2012. After James died and his estate was opened in the probate court, Deborah filed for an elective share of James’ estate as the surviving spouse. The probate court disallowed her claim. Deborah appealed to the circuit court, which affirmed the probate court in a Form 4 order. The court of appeals reversed. We granted certiorari as to two issues: (1) whether the court of appeals was right in holding Deborah was entitled to the elective share and (2) whether the court of appeals correctly reversed the probate court’s ruling that certain real estate in James’ estate should be valued using a minority discount.

The probate court reasoned Deborah was not entitled to the elective share because “there was essentially and for all practical purposes, a Family Court order terminating all marital rights and equitable distribution between the spouses.” It was reversible error to conclude Deborah was not James’ surviving spouse. The clear lights of §62-2-802 show us she was. She and James did not divorce before he died and their marital litigation was never “concluded by an order purporting to terminate all marital property rights or confirming equitable distribution.” § 62-2-802(b)(3). The family court orders were, in caption and substance, temporary. A glance at the temporary orders tells us Deborah and James had reached a temporary agreement as to some of their assets but planned to come back to court to sort things out with finality. There was no question they had not arrived at a final agreement and still had marital property yet to be divided. The last temporary order memorialized their agreement to pursue discovery and “cooperate with the identification and appraisement of all marital property.” There is no such creature as a “temporary” equitable distribution order. Equitable distribution occurs only by a final order of the family court. The only final order the family court issued was one dismissing their case, and it emphasized that “any order previously issued in the case shall be of no further effect.” Nor did Deborah waive her right to the elective share.

The probate court, believing the fair thing to do was grant Deborah nothing, set the law aside and imposed its own idea of fairness. This it cannot do.

Finally, somewhere in the course of this case lurks the notion that a surviving spouse can impliedly waive his or her right to the elective share. We reiterated that the elective share may only be waived by express compliance with § 62-2-204. We therefore affirmed the opinion of the court of appeals reversing the denial of Deborah’s elective share claim. The case is remanded to the probate court for proceedings consistent with this opinion and the opinion of the court of appeals.

Affirmed in part, dismissed as improvidently granted in part, and remanded.

Weeks v. Weeks (Lawyers’ Weekly No. 010-066-24, 4 pp.) (D. Garrison Hill, J.) Appealed from Aiken County Circuit Court and Probate Court (Courtney Clyburn Pope, J., and Tonya L. Marchant, J.) Clarke Wardlaw McCants, IV, Clarke W. McCants, III, and Amy Patterson Shumpert, all of Nance & McCants, of Aiken, for Petitioner; Leon Edward Green, of Leon E. Green, PC, of Aiken, for Respondent. South Carolina Supreme Court