South Carolina Code 62-2-207. Charging spouse with gifts received; liability of others for balance of elective share
(1) under the decedent‘s will;
Terms Used In South Carolina Code 62-2-207
- Annuity: A periodic (usually annual) payment of a fixed sum of money for either the life of the recipient or for a fixed number of years. A series of payments under a contract from an insurance company, a trust company, or an individual. Annuity payments are made at regular intervals over a period of more than one full year.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Decedent: A deceased person.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Inter vivos: Transfer of property from one living person to another living person.
- Marital deduction: The deduction(s) that can be taken in the determination of gift and estate tax liabilities because of the existence of a marriage or marital relationship.
- Probate: Proving a will
(2) by intestacy;
(3) by a homestead allowance;
(4) by § 62-2-401;
(5) by a beneficiary designation in life insurance policies;
(6) by a beneficiary designation of an Individual Retirement Account, qualified retirement plan, or annuity;
(7) in a trust created by the decedent’s will; or
(8) in a revocable inter vivos trust created by the decedent.
(b) A beneficial interest that passes or has passed to a surviving spouse under the decedent’s will includes:
(1) an interest as a beneficiary in a trust created by the decedent’s will;
(2) an interest as a beneficiary in property passing under the decedent’s will to an inter vivos trust created by the decedent; and
(3) an interest as a beneficiary in property contained at the decedent’s death in a revocable inter vivos trust found to be illusory, as provided in § 62-7-401(c).
(c)(1) For purposes of this provision, the value of the electing spouse’s beneficial interest in property which qualifies for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended, or, if the federal estate tax is not applicable at the decedent’s death, would have qualified for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended, in effect on December 31, 2009, must be computed at the full value of the qualifying property. Qualifying for these purposes must be determined without regard to whether an election has been made to treat the property as qualified terminable interest property.
(2) The value of this qualifying property shall be the value at the date of death as finally determined in the decedent’s estate tax proceedings, or if there is no federal estate tax proceeding, as shown on the inventory and appraisement or as determined by the court. The personal representative must choose assets, in order of abatement pursuant to § 62-3-902, to satisfy the elective share, using the fair market value at the date of distribution. The elective share is pecuniary in nature.
(3) The electing spouse who is the income beneficiary of a trust, the value of which is treated, or could be treated, as qualifying property, shall have the right to require a conversion of the income trust to a total return unitrust as defined in the South Carolina Uniform Principal and Income Act.
(d) In choosing assets to fund the elective share, remaining property of the probate estate is applied so that liability for the balance of the elective share of the surviving spouse is satisfied from the probate estate, with devises abating in accordance with § 62-3-902.