South Carolina law, for title research

Is South Carolina a community property state? No: equitable apportionment, survivorship deeds, and the spouse's elective share

Every rule below is quoted from the South Carolina Code of Laws or another official source, linked and checked on the date shown. General information, not legal advice.

How does South Carolina classify a married couple's property?

As marital or nonmarital, for apportionment in marital litigation. IRS Publication 555 lists nine community property states, and South Carolina is not among them. Under Code section 20-3-610, during the marriage a spouse acquires a vested special equity and ownership right in the marital property, and that right is subject to apportionment by the family courts at the time marital litigation is filed or commenced.

Marital property is all real and personal property acquired during the marriage and owned on the date the litigation is filed, regardless of how legal title is held, except the nonmarital categories below. A deed in one spouse's name does not by itself take a house out of the division.

A buyer needs the next rule. Under section 20-3-670(A)(1)(a), these rights are not effective against third parties, for a parcel of real property in which an interest is claimed, until a notice of pendency of action is filed with the clerk of court of the county where the parcel lies. Section 20-3-670(A)(2) says prior rights and interests of third parties in real property are not affected by that filing. If a party ordered to sign a deed fails to, section 20-3-660(A) lets the court direct the clerk of court to sign it, with the same effect. Section 20-3-670(B) lets a party obtain a transcript of a judgment requiring payment of money or transfer of property, which may be recorded and indexed in the county records.

Is South Carolina a 50/50 state in a divorce?

The statute sets no fixed split. In a divorce, a separate support action or other marital litigation, section 20-3-620 calls for a final equitable apportionment upon request by either party in the pleadings, and the court gives weight, in such proportion as it finds appropriate, to listed factors. They include the duration of the marriage, marital misconduct or fault that affects or has affected the economic circumstances or contributed to the breakup of the marriage, and each spouse's contribution to the property, including as homemaker. Conduct after the earliest of a pendente lite order, a signed settlement agreement or a permanent order is not considered for that factor.

Where a party is absent or refuses to comply, section 20-3-650 lets the court sequester that party's in-state property and, if what is sequestered is insufficient, direct its mortgaging or sale.

What stays outside the division?

Nonmarital property, which the court has no jurisdiction or authority to apportion. That covers property acquired by inheritance, devise, bequest or gift from someone other than the spouse, property acquired before the marriage or after the earliest of a pendente lite order, a signed written settlement agreement or a permanent order, property acquired in exchange for any of these, and property excluded by written contract, including an antenuptial agreement.

Growth in nonmarital property stays outside except to the extent it resulted directly or indirectly from the other spouse's efforts during the marriage. Gifts between spouses, even through a third party, are marital property subject to division.

How do South Carolina spouses hold title with survivorship?

One route is statutory wording on the deed. Section 27-7-40 applies in addition to any other methods the law allows: a deed naming the grantees followed by the words as joint tenants with rights of survivorship, and not as tenants in common, is conclusively deemed to create a joint tenancy with rights of survivorship. At a joint tenant's death the interest vests in the survivor or survivors, and no joint tenant acting alone may encumber the fee.

The same section says nothing in it shall be construed to create the estate of tenancy by the entireties. Section 62-2-804 sets the default: a joint tenancy is deemed severed by a joint tenant's death and the real property is distributable as a tenancy in common, unless the instrument expressly provides for a right of survivorship.

What does a divorce do to a joint tenancy deed?

It severs it. A joint tenancy held by a husband and wife with no other joint tenants is severed upon the filing of an order or decree dissolving their marriage, and the former spouses then hold as tenants in common unless an order or decree of a court of competent jurisdiction provides otherwise. After a joint tenant's death, the survivors may record a copy of the death certificate, in the form section 27-7-40(b) requires, with the register of deeds, and that filing is conclusive that the interest vested in them.

Must a spouse sign a South Carolina deed?

The sections read here state no general rule requiring it. Section 20-5-20 says a married woman may convey her separate property in the same manner and to the same extent as if she were unmarried. Chapters 1, 3, 5 and 7 of Title 27 contain no clause requiring a spouse to join in a deed; the only joinder rule there is for joint tenants, in section 27-7-40. Section 20-3-190 bars a wife of dower after a final divorce decree. Whether a particular deed needs a spouse's signature is for a South Carolina attorney, and that is not a statement about the whole Code.

What does a surviving spouse take at death?

Without a will, the surviving spouse takes the entire intestate estate if there are no surviving issue and one-half if there are, under section 62-2-102. The surviving spouse of a person domiciled in the state may elect one-third of the probate estate under section 62-2-201, and section 62-2-206 charges against that share what passes to the spouse by will, by intestacy, by homestead allowance and by section 62-2-401.

The probate estate is property passing by will or intestacy, less funeral and administration expenses and enforceable claims, and the elective share applies only to it, apart from an illusory revocable trust. The election is made by filing and serving a summons and petition within the later of eight months after death, six months after probate of the will, or thirty days after service in a probate challenge. Section 62-2-203 limits the right to the spouse's lifetime, and section 62-2-204 allows a voluntary signed waiver before or after marriage, after fair and reasonable written disclosures. A waiver of all rights or a complete property settlement in anticipation of separation or divorce also waives it, unless it provides otherwise.

Other rules can change the picture. Under section 62-2-802, a divorced person is not a surviving spouse unless remarried to the decedent, and neither is a party to a valid proceeding concluded by an order purporting to terminate all marital property rights. Section 62-2-301 gives a spouse who married the testator after the will the intestate share, with stated exceptions, and section 62-2-401 gives a surviving spouse of a domiciled decedent exempt property up to 45,000 dollars. For a buyer from an estate, section 62-3-714 protects a person who in good faith deals with a personal representative for value, as if the power had been properly exercised, and section 62-3-910 limits the sale of real property absent authority in the will.

What a title search checks on a married South Carolina owner

A title check before buying reads the chain of title: how each owner took title, with images of the key deeds, whether a survivorship deed in the chain carries the statutory words, who signed the mortgages it finds, and any recorded notice of pendency, death certificate or court record it finds. What those records do to title is a question for a South Carolina attorney.

The South Carolina marital property rules on this page, with their sources

Sources: IRS Publication 555, Community Property; Code of Laws 20-3-610; Code of Laws 20-3-620; Code of Laws 20-3-630; Code of Laws 20-3-650; Code of Laws 27-7-40; Code of Laws 62-2-201; Code of Laws 62-2-202; Code of Laws 62-2-205; Code of Laws 62-2-102; Code of Laws 20-3-670; Code of Laws 20-3-660; Code of Laws 62-2-804; Code of Laws 20-5-20; Code of Laws 20-3-190; Code of Laws 62-2-206; Code of Laws 62-2-204; Code of Laws 62-2-203; Code of Laws 62-2-802; Code of Laws 62-2-301; Code of Laws 62-2-401; Code of Laws 62-3-714; Code of Laws 62-3-910. Each row links the section it summarizes.

Questions people ask

More on how South Carolina property law shapes a title search: title research in South Carolina.