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Common Law Marriage & Estate Planning in South Carolina

    Client Alerts
  • July 27, 2022

Whether two people are legally married is a decidedly important factor in estate planning and probate in South Carolina. For instance, spouses cannot unilaterally disinherit each other while non-spouses can; spouses are free to give unlimited assets to each other during their lives without tax consequences while non-spouses have tax-free gifting limitations; spouses can stretch the distributions of 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 be.

In a perfect world, the question of whether two people are married should start with whether there was a marriage license and end with whether there was a divorce decree. But South Carolina and other jurisdictions recognize an exception called “common law marriage.” At its base, the doctrine of common law marriage provides that two people may agree to be married, either expressly or impliedly, regardless of whether they obtain a valid marriage license.

But on July 24, 2019, the Supreme Court of South Carolina issued an opinion in a case called Stone v. Thompson, 428 S.C. 79, 833 S.E.2d 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 be married without obtaining a valid license. Next, the Supreme Court refined the test to determine whether such common law marriage is valid for people who supposedly entered a common law marriage before July 24, 2019. The new standard is that “a party asserting a common law marriage is required to demonstrate mutual assent to be married by clear and convincing evidence.” Clear and convincing evidence is a heightened standard that requires a party to show a degree of proof sufficient to produce a firm belief in the allegations sought to be established. This is a higher standard than a “preponderance of the evidence” (i.e., “more likely than not”) but less than “beyond a reasonable doubt.” The proponent of the common law marriage will have to prove that they wanted to be married and that the other person did as well. Some factors that parties will use to argue one side or the other are tax returns, documents filed under oath, introductions in public, contracts, and financial accounts.

A critical issue such as marriage should not be left to chance. If two people want to be treated as a married couple, the surest and only remaining available way to secure that bond is to obtain a marriage license. Otherwise, the issue of marriage could be litigated in the event of a dissolution of the partnership and/or the death of one of the parties. When in doubt, get the license.