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April 04, 2008


Lanette Dinkins

Abandonment and Elective Share
I recently read the article entitled "Abandonment and Elective Share" on your website and I am currently dealing with this situation between my mom (deceased) and my dad. My mom and dad have been seperated for more than 25 years, my mom had her home before they married and all bills in her name, he lived in another town all his bills in his name and he has been living with a new woman. Now that my mom has passed he filed for elective share. I am very concerned because he willfully left and took up residence some place else. Is this possible?

Very concerned in South Carolina.

Dennis J. Christensen

South Carolina doesn't have any statute that bars a spouse from making an elective share against their spouse's estate if they have abandoned their spouse. There are no cases decided by our Supreme Court or the Court of Appeals which have addressed the issue either. Although the elective share statute is strictly construed and full compliance is required in order for the statute to be enforced, the cases construing the elective share statute on other issues give little encouragement that a spouse who abandons another will be barred from be entitled to receive an elective share of their spouse's estate.

Dennis J. Christensen

South Carolina does not have a statute addressing the issue of whether a person who has abandoned their spouse is entitled to an elective share of their spouse's estate. There is no case law that addresses this issue either. I have not heard of any lower court decisions on this issue either. Cases which have construed this statute on other issues have required strict compliance to the statutory requirements of the statute as a condition to the allowance of an elective share claim. Courts are reluctant to ignore the clear language of a statute but may be inclined to do so if it can be established there is a clear case of abandonment. It won't be easy.

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