Common Law Marriage and Estate Planning in South Carolina | Parker Poe Adams & Bernstein LLP

Whether two people are legally married is a decidedly important factor in estate planning and probate in South Carolina. For example, spouses cannot unilaterally disinherit while non-spouses can; spouses are free to give each other unlimited assets over their lifetime without tax consequences, while non-spouses have tax-free gift limits; spouses can stretch distributions from a qualified retirement account inherited from each other while non-spouses cannot; spouses are entitled to at least 50% of each other’s estate if the deceased spouse died without a will, while non-spouses may not.

In a perfect world, the question of whether two people are married should start with the existence of a marriage license and end with the existence of a divorce decree. But South Carolina and other jurisdictions recognize an exception called “common law marriage.” Basically, the doctrine of common law marriage provides that two people can agree to marry, expressly or by implication, whether or not they obtain a valid marriage license.

But on July 24, 2019, the South Carolina Supreme Court issued an opinion in a case called Stone v. Thompson, 428 SC 79, 833 SE2d 266 (2019), which significantly changed the doctrine of common-law marriage in South Carolina. First and foremost, the Supreme Court prospectively abolished common law marriage. This means that after July 24, 2019, a couple cannot agree to marry without obtaining a valid license. Next, the Supreme Court refined the test to determine whether such a common-law marriage is valid for persons who are deemed to have entered into a common-law marriage before July 24, 2019. The new standard is that “a party who claims a common-law marriage de facto is required to demonstrate the de facto union. consent to marry by clear and convincing evidence. Clear and convincing evidence is a heightened standard that requires a party to present a degree of evidence sufficient to produce a firm belief in the allegations sought to be established. This is a higher standard than “preponderance of the evidence” (ie “more likely than not”), but lower than “beyond a reasonable doubt”. The promoter of the de facto marriage will have to prove that he wanted to get married and that the other person did too. Some factors parties will use to argue one side or the other are tax returns, sworn documents, public appearances, contracts, and financial accounts.

A crucial issue like marriage should not be left to chance. If two people want to be treated as a married couple, the surest and only way available to guarantee this bond is to obtain a marriage license. Otherwise, the question of marriage could be argued in the event of the dissolution of the partnership and/or the death of one of the parties. If in doubt, get the license.

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