TITLE 62 . SOUTH CAROLINA PROBATE CODE
CHAPTER 1. General Provisions, Definitions, and Probate Jurisdiction of Court
Part 1
Short Title, Construction, General Provisions
SECTION 62-1-100. Effective date.
(a) Except as otherwise provided, this Code takes effect July 1, 1987.
(b) Except as provided elsewhere in this Code, on the effective date of this Code:
(1) the Code applies to any estates of decedents dying thereafter;
(2) the procedural provisions of the Code apply to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this Code;
(3) every personal representative, including a person administering an estate of a minor or incompetent holding an appointment on that date, continues to hold the appointment but has only the powers conferred by this Code and is subject to the duties imposed with respect to any act occurring or done thereafter;
(4) an act done before the effective date in any proceeding and any accrued right is not impaired by this Code. Unless otherwise provided in the Code, a substantive right in the decedent's estate accrues in accordance with the law in effect on the date of the decedent's death. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before the effective date, the provisions remain in force with respect to that right;
(5) a rule of construction or presumption provided in this code applies to multiple-party accounts opened before the effective date unless there is a clear indication of a contrary intent.
(c) Section 62-2-502 is effective for all wills executed after June 27, 1984, whether the testator dies before or after July 1, 1987.
HISTORY: 1986 Act No. 539, § 5; 1987 Act No. 171, § 78; 1990 Act No. 522, Part I, § 1; 1997 Act No. 152, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-101. Short title.
Sections 62-1-101 et seq. shall be known and may be cited as the South Carolina Probate Code. References in Sections 62-1-101 et seq. to the term "Code", unless the context clearly indicates otherwise, shall mean the South Carolina Probate Code.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-102. Purposes; rules of construction.
(a) This Code shall be liberally construed and applied to promote its underlying purposes and policies.
(b) The underlying purposes and policies of this Code are:
(1) to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons;
(2) to discover and make effective the intent of a decedent in the distribution of his property;
(3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;
(4) to facilitate use and enforcement of certain trusts;
(5) to make uniform the law among the various jurisdictions.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-103. Supplementary general principles of law applicable.
Unless displaced by the particular provisions of this Code, the principles of law and equity supplement its provisions.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-104. Severability.
If any provision of this Code or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Code which can be given effect without the invalid provision or application and to this end the provisions of this Code are declared to be severable.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-105. Construction against implied repeal.
This Code is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-106. Effect of fraud and evasion.
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this Code or if fraud is used to avoid or circumvent the provisions or purposes of this Code, any person injured thereby may: (i) obtain appropriate relief against the perpetrator of the fraud and (ii) restitution from any person (other than a bona fide purchaser) benefiting from the fraud, whether innocent or not, but only to the extent of any benefit received. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-107. Evidence as to death or status.
In proceedings under this Code the South Carolina Rules of Evidence are applicable unless specifically displaced by the Code.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-108. Acts by holder of general power.
For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subject to the power. The term "presently exercisable general power of appointment" includes a testamentary general power of appointment having no conditions precedent to its exercise other than the death of the holder, the validity of the holder's last will and testament, and the inclusion of a provision in the will sufficient to exercise this power.
HISTORY: 1986 Act No. 539, § 1; 1988 Act No. 659, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-109. Duties and obligations of lawyer and person serving as a fiduciary.
Unless expressly provided otherwise in a written employment agreement, the creation of an attorney-client relationship between a lawyer and a person serving as a fiduciary shall not impose upon the lawyer any duties or obligations to other persons interested in the estate, trust estate, or other fiduciary property, even though fiduciary funds may be used to compensate the lawyer for legal services rendered to the fiduciary. This section is intended to be declaratory of the common law and governs relationships in existence between lawyers and persons serving as fiduciaries as well as such relationships hereafter created.
HISTORY: 1994 Act No. 449, § 2; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-110. Fiduciary and lawyer, privileged communication.
Whenever an attorney-client relationship exists between a lawyer and a fiduciary, communications between the lawyer and the fiduciary shall be subject to the attorney-client privilege unless waived by the fiduciary, even though fiduciary funds may be used to compensate the lawyer for legal services rendered to the fiduciary. The existence of a fiduciary relationship between a fiduciary and a beneficiary does not constitute or give rise to any waiver of the privilege for communications between the lawyer and the fiduciary.
HISTORY: 2008 Act No. 211, § 1, eff May 13, 2008; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-111. Authority to award costs and expenses.
In a formal proceeding, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the estate that is the subject of the controversy.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-112. Inherent power of court.
The inherent power of the court to impose penalties for contempt extends to all filing requirements, proceedings, judgments, and orders of the court. The court has the power to grant a motion to proceed in forma pauperis.
HISTORY: 2017 Act No. 87 (S.415), § 1, eff January 1, 2019.
Part 2
Definitions
SECTION 62-1-201. General definitions.
Subject to additional definitions contained in the subsequent articles which are applicable to specific articles or parts, and unless the context otherwise requires, in this Code:
(1) "Application" means a written request to the probate court for an order. An application does not require a summons and is not governed by or subject to the rules of civil procedure adopted for the circuit court.
(2) "Beneficiary", as it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer and, as it relates to a charitable trust, includes any person entitled to enforce the trust.
(3) "Child" includes any individual entitled to take as a child under this Code by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
(4) "Claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.
(5) "Court" means the court or branch having jurisdiction in matters as provided in this Code.
(6) "Conservator" means a person who is appointed by a court to manage the estate of a protected person.
(7) "Devise", when used as a noun, means a testamentary disposition of real or personal property, including both devise and bequest as formerly used, and when used as a verb, means to dispose of real or personal property by will.
(8) "Devisee" means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
(9) "Disability" means cause for a protective order as described by Section 62-5-401.
(10) "Distributee" means any person who has received property of a decedent from his personal representative other than as creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For purposes of this provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
(11) "Estate" includes the property of the decedent, trust, or other person whose affairs are subject to this Code as originally constituted and as it exists from time to time during administration.
(12) "Exempt property" means that property of a decedent's estate which is described in Section 62-2-401.
(13) "Expense of administration" includes commissions of personal representatives, fees and disbursements of attorneys, fees of appraisers, and such other expenses that are reasonably incurred in the administration of the estate.
(14) "Fair market value" is the price that property would sell for on the open market that would be agreed on between a willing buyer and a willing seller, with neither being required to act, and both having reasonable knowledge of the relevant facts.
(15) "Fiduciary" includes personal representative, guardian, conservator, and trustee.
(16) "Foreign personal representative" means a personal representative of another jurisdiction.
(17) "Formal proceedings" means actions commenced by the filing of a summons and petition with the probate court and service of the summons and petition upon the interested persons. Formal proceedings are governed by and subject to the rules of civil procedure adopted for circuit courts and other rules of procedure in this title.
(18) "Guardian" means a person appointed by the court as guardian, but excludes one who is a guardian ad litem.
(19) "General power of appointment" means any power that would cause income to be taxed to the fiduciary in his individual capacity under Section 678 of the Internal Revenue Code and any power that would be a general power of appointment, in whole or in part, under Section 2041(a)(2) or 2514(c) of the Internal Revenue Code.
(20) "Heirs" means those persons, including the surviving spouse, who are entitled under the statute of intestate succession to the property of a decedent.
(21) "Incapacitated person" is as defined in Section 62-5-101.
(22) "Informal proceedings" means those commenced by application and conducted without notice to interested persons by the court for probate of a will or appointment of a personal representative. Informal proceedings are not governed by or subject to the rules of civil procedure adopted for the circuit court.
(23) "Interested person" includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
(24) "Issue" of a person means all his lineal descendants whether natural or adoptive of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this Code.
(25) "Lease" includes an oil, gas, or other mineral lease.
(26) "Letters" includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
(27) "Minor" means a person who is under eighteen years of age, excluding a person under the age of eighteen who is married or emancipated as decreed by the family court.
(28) "Mortgage" means any conveyance, agreement, or arrangement in which real property is used as security.
(29) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his death.
(30) "Organization" includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal entity.
(31) "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this Code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.
(32) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
(33) "Personal representative" includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator.
(34) "Petition" means a complaint as defined in the rules of civil procedure adopted for the circuit court. A petition requires a summons and is governed by and subject to the rules of civil procedure adopted for the circuit court and other rules of procedure in this title.
(35) "Probate estate" means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy.
(36) "Proceeding" includes action at law and suit in equity.
(37) "Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
(38) "Protected person" is as defined in Section 62-5-101.
(39) "Protective proceeding" is as defined in Section 62-5-101.
(40) "SCACR" means the South Carolina Appellate Court Rules.
(41) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
(42) "Security interest" means any conveyance, agreement, or arrangement in which personal property is used as security.
(43) "Settlement" in reference to a decedent's estate includes the full process of administration, distribution, and closing.
(44) "Special administrator" means a personal representative as described by Sections 62-3-614 through 62-3-618.
(45) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
(46) "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
(47) "Successors" means those persons, other than creditors, who are entitled to property of a decedent under his will or this Code.
(48) "Testacy proceeding" means a formal proceeding to establish a will or determine intestacy.
(49) "Trust" includes any express trust, private or charitable, with additions thereto, wherever and however created. It also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. "Trust" excludes other constructive trusts, and it excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in Article 6 (Sections 62-6-101, et seq.), custodial arrangements pursuant to the South Carolina Uniform Transfers to Minors Act, Article 6, Chapter 5, Title 63, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.
(50) "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.
(51) "VA" means the United States Department of Veterans Affairs or its successor.
(52) "Ward" is as defined in Section 62-5-101.
(53) "Will" includes codicil and any testamentary instrument that merely appoints an executor or revokes or revises another will.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, §§ 1, 2; 1990 Act No. 521, §§ 2-7; 1997 Act No. 152, § 2; 2010 Act No. 244, § 1, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014; 2016 Act No. 278 (S.777), § 2, eff June 9, 2016; 2022 Act No. 128 (H.3821), § 2, eff April 4, 2022.
Part 3
Scope, Jurisdiction, and Courts
SECTION 62-1-301. Territorial application.
Except as otherwise provided in this Code, this Code applies to (1) the affairs and estates of decedents, missing persons, and persons to be protected domiciled in this State, (2) the property of nonresidents located in this State or property coming into the control of a fiduciary who is subject to the laws of this State, (3) incapacitated persons and minors in this State, (4) survivorship and related accounts in this State, and (5) trusts subject to administration in this State.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-302. Subject matter jurisdiction; concurrent jurisdiction with family court.
(a) To the full extent permitted by the Constitution, and except as otherwise specifically provided, the probate court has exclusive original jurisdiction over all subject matter related to:
(1) estates of decedents, including the contest of wills, construction of wills, determination of property in which the estate of a decedent or a protected person has an interest, and determination of heirs and successors of decedents and estates of protected persons, except that the circuit court also has jurisdiction to determine heirs and successors as necessary to resolve real estate matters, including partition, quiet title, and other actions pending in the circuit court;
(2) subject to Part 7, Article 5:
(i) protective proceedings and guardianship proceedings under Article 5;
(ii) gifts made pursuant to the South Carolina Uniform Transfers to Minors Act under Article 6, Chapter 5, Title 63;
(iii) matters involving the establishment, administration, or termination of a special needs trust for disabled individuals;
(3) trusts, inter vivos or testamentary, including the appointment of successor trustees;
(4) the issuance of marriage licenses, in form as provided by the Bureau of Vital Statistics of the Department of Health and Environmental Control; record, index, and dispose of copies of marriage certificates; and issue certified copies of the licenses and certificates;
(5) the performance of the duties of the clerk of the circuit and family courts of the county in which the probate court is held when there is a vacancy in the office of clerk of court and in proceedings in eminent domain for the acquisition of rights of way by railway companies, canal companies, governmental entities, or public utilities when the clerk is disqualified by reason of ownership of or interest in lands over which it is sought to obtain the rights of way; and
(6) the involuntary commitment of persons suffering from mental illness, intellectual disability, alcoholism, drug addiction, and active pulmonary tuberculosis.
(b) The court's jurisdiction over matters involving wrongful death or actions under the survival statute is concurrent with that of the circuit court and extends only to the approval of settlements as provided in Sections 15-51-41 and 15-51-42 and to the allocation of settlement proceeds among the parties involved in the estate.
(c) The probate court has jurisdiction to hear and determine issues relating to paternity, common-law marriage, and interpretation of marital agreements in connection with estate, trust, guardianship, and conservatorship actions pending before it, concurrent with that of the family court pursuant to Section 63-3-530.
(d) Notwithstanding the exclusive jurisdiction of the probate court over the foregoing matters, any action or proceeding filed in the probate court and relating to the following subject matters, on motion of a party, or by the court on its own motion, made not later than ten days following the date on which all responsive pleadings must be filed, must be removed to the circuit court and in these cases the circuit court shall proceed upon the matter de novo:
(1) formal proceedings for the probate of wills and for the appointment of general personal representatives;
(2) construction of wills;
(3) actions to try title concerning property in which the estate of a decedent or protected person asserts an interest;
(4) matters involving the internal or external affairs of trusts as provided in Section 62-7-201, excluding matters involving the establishment of a "special needs trust" as described in Article 7;
(5) actions in which a party has a right to trial by jury and which involve an amount in controversy of at least five thousand dollars in value; and
(6) actions concerning gifts made pursuant to the South Carolina Uniform Transfers to Minors Act, Article 6, Chapter 5, Title 63.
(e) The removal to the circuit court of an action or proceeding within the exclusive jurisdiction of the probate court applies only to the particular action or proceeding removed, and the probate court otherwise retains continuing exclusive jurisdiction.
(f) Notwithstanding the exclusive jurisdiction of the probate court over the matters set forth in subsections (a) through (c), if an action described in subsection (d) is removed to the circuit court by motion of a party, or by the probate court on its own motion, the probate court may, in its discretion, remove any other related matter or matters which are before the probate court to the circuit court if the probate court finds that the removal of such related matter or matters would be in the best interest of the estate or in the interest of judicial economy. For any matter removed by the probate court to the circuit court pursuant to this subsection, the circuit court shall proceed upon the matter de novo.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 3; 1988 Act No. 659, §§ 2, 3; 1990 Act No. 521, § 8; 1992 Act No. 475, § 2; 1997 Act No. 152, § 3; 2005 Act No. 132, § 4; 2008 Act No. 257, § 1, eff June 4, 2008; 2013 Act No. 100, § 1, eff January 1, 2014; 2017 Act No. 87 (S.415), § 3, eff January 1, 2019; 2022 Act No. 128 (H.3821), § 3, eff April 4, 2022.
SECTION 62-1-303. Venue; multiple proceedings; transfer.
(a) Subject to the provisions of Section 62-3-201, where a proceeding under this Code could be maintained in more than one place in South Carolina, the court in which the proceeding is first commenced has the exclusive right to proceed.
(b) If proceedings concerning the same estate, protected persons, ward, or trust are commenced in more than one court of South Carolina, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and, if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.
(c) If a court finds that, in the interest of justice, a proceeding or a file should be located in another court of probate in South Carolina, the court making the finding may transfer the proceeding or file to the other court.
(d) If a court transfers venue of a proceeding or file to a court in another county, venue for that proceeding or file, and any subsequent matters concerning that proceeding or file, including appeals, shall be retained by the county to which the venue has been transferred.
(e) If a probate court judge is disqualified from matters concerning a proceeding or a file, and venue has not been transferred to another county, a special probate court judge appointed for that proceeding or file has all of the powers and duties appertaining to the probate court judge of the county where the proceeding or file commenced, and venue for any subsequent matters concerning that proceeding or file, including appeals, remains with the county where that proceeding or file commenced.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-304. South Carolina Rules of Civil Procedure govern formal proceedings.
The South Carolina Rules of Civil Procedure (SCRCP) adopted for the circuit court and other rules of procedure in this title govern formal proceedings pursuant to this title. A formal proceeding is a "civil action" as defined in Rule 2, SCRCP, and must be commenced as provided in Rule 3, SCRCP.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 2, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-305. Records and certified copies.
The court shall keep a record for each decedent, ward, protected person, or trust involved in any document which may be filed with the court under this Code, including petitions and applications, demands for notices or bonds, and of any orders or responses relating thereto by the probate court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law, the clerk must issue certified copies of any probated wills, letters issued to personal representatives, or any other record or paper filed or recorded. Certificates relating to letters must show the date of appointment.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-306. Jury trials.
(a) If duly demanded, a party is entitled to trial by jury in any proceeding involving an issue of fact in an action for the recovery of money only or of specific real or personal property, unless waived as provided in the rules of civil procedure for the courts of this State. The right to trial by jury exists in, but is not limited to, formal proceedings in favor of the probate of a will or contesting the probate of a will.
(b) If there is no right to trial by jury under subsection (a) or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only.
(c) The method of drawing, summoning, and compensating jurors under this section shall be within the province of the county jury commission and shall be governed by Chapter 7, Title 14 of the 1976 Code relating to juries in circuit courts.
HISTORY: 1986 Act No. 539, § 1; 1988 Act No. 659, § 4; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-307. Probate judge; powers.
The acts and orders which this Code specifies as performable by the court may be performed either by the judge or by a person, including one or more clerks, designated by the judge by a written order filed and recorded in the office of the court.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-308. Appeals.
Except as provided in subsection (1), appeals from the probate court must be to the circuit court and are governed by the following rules:
(a) A person interested in a final order, sentence, or decree of a probate court may appeal to the circuit court in the same county, subject to the provisions of Section 62-1-303. The notice of intention to appeal to the circuit court must be filed in the office of the circuit court and in the office of the probate court and a copy served on all parties not in default within ten days after receipt of written notice of the appealed from order, sentence, or decree of the probate court.
(b) Within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court, the appellant must file with the clerk of the circuit court a Statement of Issues on Appeal (in a format described in Rule 208(b)(1)(B), SCACR) with proof of service and a copy served on all parties.
(c) Where a transcript of the testimony and proceedings in the probate court was prepared, the appellant shall, within ten days after the date of service of the notice of intention to appeal, make satisfactory arrangements with the court or court reporter for furnishing the transcript. If the appellant has not received the transcript within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court, the appellant may make a motion to the circuit court for an extension to serve and file the parties' briefs and Designations of Matter to be Included in the Record on Appeal, as provided in subsections (d) and (e).
(d) Within thirty days after service of the Statement of Issues on Appeal, all parties to the appeal shall serve on all other parties to the appeal a Designation of Matter to be Included in the Record on Appeal (in a format described in Rule 209, SCACR) and file with the clerk of the circuit court one copy of the Designation of Matter to be Included in the Record on Appeal with proof of service.
(e) At the same time the appellant serves his Designation of Matter to be Included in the Record on Appeal, the appellant shall serve one copy of his brief on all parties to the appeal, and file with the clerk of the circuit court one copy of the brief with proof of service. The appellant's brief shall be in a format described in Rule 208(b)(1), SCACR. Within thirty days after service of the appellant's brief, the respondent shall serve one copy of his brief on all parties to the appeal, and file with the clerk of the circuit court one copy of the brief with proof of service. The respondent's brief shall be in a format described in Rule 208(b)(2), SCACR. Appellant may file and serve a brief in reply to the brief of the respondent. If a reply brief is prepared, the appellant shall, within ten days after service of the respondent's brief, serve one copy of the reply brief on all parties to the appeal and file with the clerk of circuit court one copy of the reply brief with proof of service. The appellant's reply brief shall be in a format described in Rule 208(b)(3), SCACR.
(f) Within thirty days after service of the respondent's brief, the appellant shall serve a copy of the Record on Appeal (in a format described in subsections (c), (e), (f) and (g) of Rule 210, SCACR, except that the Record of Appeal need not comply with the requirements of Rule 267, SCACR) on each party who has served a brief and file with the clerk of the circuit court one copy of the Record on Appeal with proof of service.
(g) Except as provided in this section, no party is required to comply with any other requirements of the South Carolina Appellate Court Rules. Upon final disposition of the appeal, all exhibits filed separately (as described in Rule 210(f), SCACR), but not included in the Record on Appeal, must be forwarded to the probate court.
(h) When an appeal according to law is taken from any sentence or decree of the probate court, all proceedings in pursuance of the order, sentence, or decree appealed from shall cease until the judgment of the circuit court, court of appeals or Supreme Court is had. If the appellant, in writing, waives his appeal before the entry of the judgment, proceedings may be had in the probate court as if no appeal had been taken.
(i) The circuit court, court of appeals, or Supreme Court shall hear and determine the appeal according to the rules of law. The hearing must be strictly on appeal and no new evidence may be presented.
(j) The final decision and judgment in cases appealed, as provided in this code, shall be certified to the probate court by the circuit court, court of appeals, or Supreme Court, as the case may be, and the same proceedings shall be had in the probate court as though the decision had been made in the probate court. Within forty-five days after receipt of written notice of the final decision and judgment in cases appealed, the prevailing party shall provide a copy of such decision and judgment to the probate court.
(k) A judge of a probate court must not be admitted to have any voice in judging or determining an appeal from his decision or be permitted to act as attorney or counsel.
(l) If the parties not in default consent either in writing or on the record at a hearing in the probate court, a party to a final order, sentence, or decree of a probate court who considers himself injured by it may appeal directly to the Supreme Court, and the procedure for the appeal must be governed by the South Carolina Appellate Court Rules.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 9; 1997 Act No. 152, § 4; 1999 Act No. 55, § 56; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-309. Election and term of judges.
The judges of the probate court shall be elected by the qualified electors of the respective counties for the term of four years in the manner specified by Section 14-23-1020.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 4
Notice, Parties, and Representation in Estate Litigation and Other Matters
SECTION 62-1-401. Notice; method and time of giving.
(a) If notice of a hearing on a petition is required and, except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of a petition to be given to any interested person or his attorney if he has appeared by attorney or requested that notice be sent to his attorney. Notice must be given:
(1) by mailing a copy of the notice at least twenty days before the time set for the hearing by certified, registered, or ordinary first class mail, or by a commercial delivery service that meets the requirements to be considered a designated delivery service in accordance with 26 U.S.C. Section 7502(f)(2) addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known;
(2) by delivering a copy of the notice to the person being notified personally at least twenty days before the time set for the hearing; or
(3) if the address or identity of any person is not known and cannot be ascertained with reasonable diligence by publishing a copy of the notice in the same manner as required by law in the case of the publication of a summons for an absent defendant in the court of common pleas.
(b) The court for good cause shown may provide for a different method or time of giving notice for any hearing.
(c) Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.
(d) Notwithstanding a provision to the contrary, the notice provisions in this section do not, and are not intended to, constitute a summons that is required for a petition.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 3, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014; 2017 Act No. 87 (S.415), § 4, eff January 1, 2019.
SECTION 62-1-402. Notice; waiver.
A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-403. Pleadings; when parties bound by others; notice.
In formal proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons and in judicially supervised settlements the following apply:
(1) Interests to be affected must be described in pleadings that give reasonable information to owners by name or class by reference to the instrument creating the interests or in other appropriate manner.
(2) Persons are bound by orders binding others in the following cases:
(i) Orders binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
(ii) To the extent there is no conflict of interest between them or among persons represented, orders binding a conservator bind the person whose estate he controls; orders binding a guardian bind the ward if no conservator of his estate has been appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate. If there is no conflict of interest and no conservator or guardian has been appointed, a person may represent his minor or unborn issue.
(iii) A minor or unborn or unascertained person who is not otherwise represented is bound by an order to the extent his interest is adequately represented by another party having a substantially identical interest in the proceeding.
(3) Service of summons, petition, and notice is required as follows:
(i) Service of summons, petition, and notice must be given to every interested person or to one who can bind an interested person as described in (2)(i) or (2)(ii) above. Service of summons and petition upon, as well as notice, may be given both to a person and to another who may bind him.
(ii) Service upon and notice is given to unborn or unascertained persons who are not represented under (2)(i) or (2)(ii) above by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.
(4) At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 5; 2010 Act No. 244, § 4, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 5
Uniform Simultaneous Death Act
SECTION 62-1-500. Short title.
This part may be cited as the "Uniform Simultaneous Death Act".
HISTORY: 1986 Act No. 539, § 1; 1976 Code § 62-1-501; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-501. Definitions.
For purposes of this part:
(1) "Co-owners with right of survivorship" includes joint tenants in a joint tenancy with right of survivorship, joint tenants in a tenancy in common with right of survivorship, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others.
(2) "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with POD designation, pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.
(3) "Payor" means a trustee, insurer, business entity, employer, government, governmental agency, subdivision, or instrumentality, or any other person authorized or obligated by law or a governing instrument to make payments.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-502. Requirement of survival by 120 hours; individuals, two or more beneficiaries, class members.
(a) Except as otherwise provided by this Code, where the title to property, the devolution of property, the right to elect an interest in property, or any other right or benefit depends upon an individual's survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by at least one hundred twenty hours is deemed to have predeceased the other individual.
(b) If the language of the governing instrument disposes of property in such a way that two or more beneficiaries are designated to take alternatively by reason of surviving each other and it is not established by clear and convincing evidence that any such beneficiary has survived any other beneficiary by at least one hundred twenty hours, the property shall be divided into as many equal shares as there are alternative beneficiaries, and these shares shall be distributed respectively to each such beneficiary's estate.
(c) If the language of the governing instrument disposes of property in such a way that it is to be distributed to the member or members of a class who survived an individual, each member of the class will be deemed to have survived that individual by at least one hundred twenty hours unless it is established by clear and convincing evidence that the individual survived the class member or members by at least one hundred twenty hours.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-503. Requirement of survival by 120 hours under governing instruments.
Except as otherwise provided by this Code, for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by at least one hundred twenty hours is deemed to have predeceased the event.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-504. Co-owners with right of survivorship; requirement of survival by 120 hours.
Except as otherwise provided by this Code, if:
(a) it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by at least one hundred twenty hours, one-half of the property passes as if one had survived by at least one hundred twenty hours and one-half as if the other had survived by at least one hundred twenty hours;
(b) there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by at least one hundred twenty hours, the property passes to the estates of each of the co-owners in the proportion that one bears to the whole number of co-owners.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-505. Right or benefit that depends on surviving the death of a decedent's killer.
Notwithstanding any other provisions of the Code, solely for the purpose of determining whether a decedent is entitled to any right or benefit that depends on surviving the death of a decedent's killer under Section 62-2-803, the killer is deemed to have predeceased the decedent, and the decedent is deemed to have survived the killer by at least one hundred twenty hours, or any greater survival period required of the decedent under the killer's will or other governing instrument, unless it is established by clear and convincing evidence that the killer survived the victim by at least one hundred twenty hours.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-506. Exceptions.
Survival by one hundred twenty hours is not required if any of the following apply:
(1) the governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
(2) the governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event for a specified period; but survival of the event or the specified period must be established by clear and convincing evidence;
(3) the imposition of a one hundred twenty hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under other provisions of the Code; but survival must be established by clear and convincing evidence;
(4) the application of a one hundred and twenty hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival must be established by clear and convincing evidence;
(5) the application of a one hundred twenty hour requirement of survival would deprive an individual or the estate of an individual of an otherwise available tax exemption, deduction, exclusion, or credit, expressly including the marital deduction, resulting in the imposition of a tax upon a donor or a decedent's estate, other person, or their estate, as the transferor of any property. "Tax" includes any federal or state gift, estate or inheritance tax;
(6) the application of a one hundred twenty hour requirement of survival would result in an escheat.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-507. Evidence of death or status.
In addition to the South Carolina Rules of Evidence, the following rules relating to a determination of death and status apply:
(1) Death occurs when an individual is determined to be dead under the Uniform Determination of Death Act, Section 44-43-460.
(2) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death, and the identity of the decedent.
(3) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
(4) In the absence of prima facie evidence of death under subsection (2) or (3), the fact of death may be established by clear and convincing evidence, including circumstantial evidence.
(5) A person whose death is not established under the preceding paragraphs who is absent for a continuous period of five years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
(6) In the absence of evidence disputing the time of death stated on a document described in subsection (2) or (3), a document described in subsection (2) or (3) that states a time of death one hundred twenty hours or more after the time of death of another person, however the time of death of the other person is determined, establishes by clear and convincing evidence that the person survived the other person by one hundred twenty hours.
HISTORY: 1986 Act No. 539, § 1; Code 1976 § 62-1-107; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-508. Protection of payors, bona fide purchasers, and other third parties; personal liability of recipient.
(1) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a person designated in a governing instrument who, under this part, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the person's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this part. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this part.
(2) Written notice of a claimed lack of entitlement under subsection (1) must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this part, a payor or other third party may pay any amount owed or transfer or deposit any item of property, other than tangible personal property, held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this part, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
(3) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is not obligated under this part to return the payment, item of property, or benefit, and is not liable under this part for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this part is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this part.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-509. Construction.
This part [Sections 62-1-501 et seq.] shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact substantially identical laws.
HISTORY: 1986 Act No. 539, § 1; 1976 Code § 62-1-508; 2013 Act No. 100, § 1, eff January 1, 2014. TITLE 62. SOUTH CAROLINA PROBATE CODE
CHAPTER 2. Intestate Succession and Wills
Part 1
Intestate Succession
SECTION 62-2-101. Intestate estate.
Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this Code.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-102. Share of the spouse.
The intestate share of the surviving spouse is:
(1) if there is no surviving issue of the decedent, the entire intestate estate;
(2) if there are surviving issue, one-half of the intestate estate.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-103. Share of heirs other than surviving spouse.
The part of the intestate estate not passing to the surviving spouse under Section 62-2-102, or the entire estate if there is no surviving spouse, passes as follows:
(1) to the issue of the decedent: if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation;
(2) if there is no surviving issue, to his parent or parents equally;
(3) if there is no surviving issue or parent, to the issue of the parents or either of them by representation;
(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;
(5) if there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by one or more great-grandparents or issue of great-grandparents, half of the estate passes to the surviving paternal great-grandparents in equal shares, or to the surviving paternal great-grandparent if only one survives, or to the issue of the paternal great-grandparents if none of the great-grandparents survive, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving great-grandparent or issue of a great-grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 10; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-104. Requirement that individual survive decedent for one hundred twenty hours.
(1) For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in subsection (2):
(a) an individual who was born before a decedent's death but who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established that an individual who was born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period;
(b) an individual who was in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established that an individual who was in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.
(2) This section does not apply if it would result in a taking of the intestate estate by the state under Section 62-2-105.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 11; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-105. No taker.
If there is no taker under the provisions of this article [Sections 62-2-101 et seq.], the intestate estate passes to the State of South Carolina.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-106. Representation; disclaimer by intestate beneficiary.
If representation is called for by this Code, the estate is divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner. If an interest created by intestate succession is disclaimed, the beneficiary is not treated as having predeceased the decedent for purposes of determining the generation at which the division of the estate is to be made.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 12; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-107. Kindred of half blood.
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 13; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-108. Afterborn heirs.
Issue of the decedent (but no other persons) conceived before his death but born within ten months thereafter inherit as if they had been born in the lifetime of the decedent.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 14; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-109. Meaning of child and related terms.
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
(1) From the date the final decree of adoption is entered, and except as otherwise provided in Section 63-9-1120, an adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.
(2) In cases not covered by (1), a person born out of wedlock is a child of the mother. That person is also a child of the father if:
(i) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
(ii) the paternity is established by an adjudication commenced before the death of the father or within the later of eight months after the death of the father or six months after the initial appointment of a personal representative of his estate and, if after his death, by clear and convincing proof, except that the paternity established under this subitem (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.
(3) A person is not the child of a parent whose parental rights have been terminated under Section 63-7-2580 of the 1976 Code, except that the termination of parental rights is ineffective to disqualify the child or its kindred to inherit from or through the parent.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 4; 1990 Act No. 521, § 15; 1997 Act No. 152, § 6; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-110. Advancements.
If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing signed by the decedent or acknowledged in a writing signed by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property shall be taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-111. Debts to decedent.
A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's issue.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-112. Alienage.
No person is disqualified to take as an heir because he, or a person through whom he claims, is or has been an alien.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-113. Persons related to decedent through two lines.
A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship which would entitle him to the larger share.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-114. Limitation on parent's entitlement as intestate heirs to estate proceeds; failure to provide support for decedent during minority.
Notwithstanding any other provision of law, if the parents of the deceased would be the intestate heirs pursuant to Section 62-2-103(2), upon the service of a summons, petition and notice by either parent or any other party of potential interest based upon the decedent having died intestate, the probate court may deny or limit either or both parent's entitlement for a share of the proceeds if the court determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 63-5-20 and did not otherwise provide for the needs of the decedent during his or her minority. If the court makes such a determination as to a parent or parents, the parent shall be a disqualified parent. The proceeds, or portion of the proceeds, that a disqualified parent would have taken shall pass as though the disqualified parent had predeceased the decedent.
HISTORY: 1996 Act No. 370, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 2
Elective Share of Surviving Spouse
SECTION 62-2-201. Right of elective share.
(a) If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of one-third of the decedent's probate estate, as computed under Section 62-2-202, the share to be satisfied as detailed in Sections 62-2-206 and 62-2-207 and, generally, under the limitations and conditions hereinafter stated.
(b) If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedent's domicile at death.
(c) "Surviving spouse", as used in this Part, is as defined in Section 62-2-802.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 5; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-202. Probate estate.
(a) For purposes of this Part, probate estate means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy, reduced by funeral and administration expenses and enforceable claims.
(b) Except as provided in Section 62-7-401(c) with respect to a revocable inter vivos trust found to be illusory, the elective share shall apply only to the decedent's probate estate.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 6; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-203. Exercise of right of election by surviving spouse.
The right of election of the surviving spouse may be exercised only during his lifetime by him or by his duly appointed attorney in fact. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-204. Voluntary waiver of surviving spouse's right to elective share, homestead allowance, and exempt property; property settlement in anticipation of divorce.
(A) The rights of a surviving spouse to an elective share, homestead allowance, and exempt property, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver voluntarily signed by the waiving party after fair and reasonable disclosures to the waiving party of the other party's property and financial obligations have been given in writing.
(B) Unless it provides to the contrary, a waiver of all rights in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, and exempt property by each spouse in the property of the other and a disclaimer by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of a will executed before the waiver or property settlement.
HISTORY: 1986 Act No. 539, § 1; 2008 Act No. 173, § 1, eff February 4, 2008, applicable to all waivers executed after that date; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-205. Proceedings for elective share; time limit.
(a) The surviving spouse may elect to take an elective share in the probate estate by filing in the court and serving upon the personal representative, if any, a summons and petition for the elective share within the later of (1) eight months after the date of death, (2) six months after the informal or formal probate of the decedent's will, or (3) thirty days after a surviving spouse is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of decedent's will.
(b) The surviving spouse shall give notice of the time and place set for the hearing on the elective share claim to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw or reduce his demand for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the amount of the elective share and shall order its payment from the assets of the probate estate or by contribution as set out in Sections 62-2-206 and 62-2-207.
(e) The order or judgment of the court for payment or contribution may be enforced as necessary in other courts of this State or other jurisdictions.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 7; 2010 Act No. 244, § 5, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-206. Effect of election on benefits by will or statute.
A surviving spouse is entitled to benefits provided under or outside of the decedent's will, by any homestead allowance, by Section 62-2-401, whether or not he elects to take an elective share, but such amounts as pass under the will or by intestacy, by any homestead allowance, and by Section 62-2-401 are to be charged against the elective share pursuant to Section 62-2-207(a).
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 16; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-207. Charging spouse with gifts received; liability of others for balance of elective share.
(a) In the proceeding for an elective share, all property, including any beneficial interest, which passes or has passed to the surviving spouse, or would have passed to the surviving spouse, but was renounced or disclaimed, must be applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the probate estate, so long as the property is passed to the surviving spouse:
(1) under the decedent's will;
(2) by intestacy;
(3) by a homestead allowance;
(4) by Section 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 Section 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 Section 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 Section 62-3-902.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 8; 1990 Act No. 521, § 17; 2010 Act No. 181, § 1, eff May 28, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 3
Spouse and Children Unprovided for in Wills
SECTION 62-2-301. Omitted spouse.
(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse, upon compliance with the provisions of subsection (c), shall receive the same share of the estate he would have received if the decedent left no will unless:
(1) it appears from the will that the omission was intentional; or
(2) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
(b) In satisfying a share provided by this section, the devises made by the will abate as provided in Section 62-3-902.
(c) The spouse may claim a share as provided by this section by filing in the court and serving upon the personal representative, if any, a summons and petition for such share within the later of (1) eight months after the date of death, (2) six months after the informal or formal probate of the decedent's will, or (3) thirty days after the omitted spouse is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of decedent's will. The spouse shall give notice of the time and place set for the hearing on the omitted spouse claim to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the share.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 9; 1990 Act No. 521, § 18; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-302. Pretermitted children.
(a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child, upon compliance with subsection (d), receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:
(1) it appears from the will that the omission was intentional; or
(2) when the will was executed the testator devised substantially all his estate to his spouse; or
(3) the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
(b) If, at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes that child to be dead, the child, upon compliance with subsection (d), receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
(c) In satisfying a share provided by this section, the devises made by the will abate as provided in Section 62-3-902.
(d) The child, and his guardian or conservator acting for him, may claim a share as provided by this section by filing in the court and serving upon the personal representative, if any, a summons and petition for such share within the later of (1) eight months after the date of death, (2) six months after the informal or formal probate of the decedent's will, or (3) thirty days after the omitted child is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of a decedent's will. The child, and his guardian or conservator acting for him, shall give notice of the time and place set for the hearing on the omitted child claim to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the share.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 10; 1990 Act No. 521, § 19; 1997 Act No. 152, § 7; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 4
Exempt Property
SECTION 62-2-401. Exempt property.
The surviving spouse of a decedent who was domiciled in this State is entitled from the estate to a value not exceeding twenty-five thousand dollars in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, minor or dependent children of the decedent are entitled jointly to the same value. If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than twenty-five thousand dollars, or if there is not twenty-five thousand dollars worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the twenty-five thousand dollar value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate except claims described in Section 62-3-805(a)(1). These rights are in addition to any right of homestead and personal property exemption otherwise granted by law but are chargeable against and not in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by the elective share. Any surviving spouse or minor or dependent children of the decedent who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of this section.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 20; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-402. Source, determination, and documentation.
(a) If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, the guardians or conservators of the minor children, or children who are adults may select property of the estate as exempt property. The personal representative may make these selections if the surviving spouse, the children, or the guardians or conservators of the minor children are unable or fail to do so within a reasonable time or if there are no guardians or conservators of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may make application to the court for appropriate relief.
(b) The surviving spouse or the minor or dependent child, and the minor's guardian or conservator acting for him, as the case may be, may claim a share of exempt property as provided in this part by filing in the court and mailing or delivering to the personal representative, if any, a claim for such share within eight months after the date of death, or within six months after the probate of the decedent's will, whichever limitation last expires.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 11; 1990 Act No. 521, § 21; 2010 Act No. 244, § 6, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-403. Federal veteran payments shall be exempt from creditors' claims.
All monies paid for insurance, compensation, or pensions by the United States of America to the executors, administrators, or heirs-at-law of any deceased veteran who served during any "period of war" as determined in reference to pension entitlement under 38 U.S.C. 1521, 1541 and 1542 and the regulations issued thereunder, and whose estate is administered in this State for insurance, compensation, or pensions is hereby declared to be exempt from the claims of any and all creditors of such deceased veteran.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 5
Wills
SECTION 62-2-501. Who may make a will.
An individual who is of sound mind and who is not a minor as defined in Section 62-1-201(27) may make a will.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 8; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-502. Execution.
Except as provided for writings within Section 62-2-512 and wills within Section 62-2-505, every will shall be:
(1) in writing;
(2) signed by the testator or signed in the testator's name by some other individual in the testator's presence and by the testator's direction; and
(3) signed by at least two individuals each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 22; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-503. Attestation and self-proving.
(a) Any will may be simultaneously executed, attested, and made self-proved. The self-proof shall be effective upon the acknowledgment by the testator and the affidavit of at least one witness, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal, in the following form or in a similar form showing the same intent:
I, __________, the testator, sign my name to this instrument this ___ day of __________, 20___, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older (or if under the age of eighteen, am married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.
We, __________ and __________, the witnesses, sign our names to this instrument, and at least one of us, being first duly sworn, does hereby declare, generally and to the undersigned authority, that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older (or if under the age of eighteen, was married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.
(b) An attested will may at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavit of at least one witness, each made before an officer authorized to administer oaths under the laws of the state where the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached, or annexed to the will in the following form or in a similar form showing the same intent:
The State of __________ County of __________ We, __________ and __________, the testator and at least one of the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and to the best of his knowledge the testator was at that time eighteen years of age or older (or if under the age of eighteen, was married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.
(c) A witness to any will who is also an officer authorized to administer oaths under the laws of this State may notarize the signature of the other witness of the will in the manner provided by this section.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 12; 1988 Act No. 659, § 15; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-504. Subscribing witnesses not incompetent because of interest; effect on gifts to them.
(a) A subscribing witness to any will is not incompetent to attest or prove the same by reason of any devise therein in favor of the witness, the witness's spouse, or the witness's issue. If there are two disinterested witnesses to a will in addition to the interested witness, then the devise is valid and effectual, if otherwise effective. If there are not two disinterested witnesses to a will in addition to an interested witness, then the devise is null and void to the extent of the value of the excess property, estate, or interest so devised over the value of the property, estate or interest to which the witness, the witness's spouse, or the witness' issue would be entitled upon the failure to establish the will. The voided portion of the devise shall pass by intestacy in accordance with Section 62-2-101 et seq., provided the share of the interested witness, the witness's spouse, or the witness' issue shall not increase due to the devise passing by intestacy.
(b) A subscribing witness to any will is not incompetent to attest or prove the will by reason of any appointment within the will of the witness, the witness's spouse, or the witness's issue to any office, trust, or duty. The appointment of a witness, a witness's spouse, or a witness's issue is valid, if otherwise so, and the individual so appointed, in such case, is entitled by law to take or receive any commissions or other compensation on account thereof.
(c) A subscribing witness to any will is not incompetent to attest or prove the will by reason of any charge within the will of debts to any part of the estate in favor of the witness, the witness's spouse, or the witness's issue as creditor.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 23; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-505. Choice of law as to execution.
A written will is valid if:
(a) it is executed in compliance with Section 62-2-502 either at the time of execution or at the date of the testator's death; or
(b) if its execution complies with the law at the time of execution of either (1) the place where the will is executed, or (2) the place where the testator is domiciled at the time of execution or at the time of death.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 13; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-506. Revocation by writing or by act.
(a) A will or any part thereof is revoked:
(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(2) by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in the testator's presence and by the testator's direction.
(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
(1) The testator is presumed to have intended a subsequent will to replace rather than to supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked and only the subsequent will is operative on the testator's death.
(2) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will and each will is fully operative on the testator's death to the extent they are not inconsistent.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-507. Revocation by divorce, annulment, and order terminating marital property rights; no revocation by other changes of circumstances.
(a) In this section:
(1) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
(2) "Divorce or annulment" means any divorce or annulment or declaration of invalidity of a marriage or other event that would exclude the spouse as a surviving spouse in accordance with Section 62-2-802. It also includes a court order purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent's death. A decree of separate maintenance that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(3) "Divorced individual" includes an individual whose marriage has been annulled.
(4) "Governing instrument" means an instrument executed by the divorced individual before the divorce or annulment of the individual's marriage to the individual's former spouse including, but not limited to wills, revocable inter vivos trusts, powers of attorney, life insurance beneficiary designations, annuity beneficiary designations, retirement plan beneficiary designations and transfer on death accounts. "Governing instrument" does not include a beneficiary designation made in connection with a governmental employee benefit plan established or maintained for employees of the government of the State or a political subdivision thereof, or by an agency or instrumentality of any of the foregoing.
(5) "Revocable" with respect to a disposition, appointment, provision, or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the divorced individual's former spouse, whether or not the divorced individual was then empowered to designate the divorced individual in place of the divorced individual's former spouse and whether or not the divorced individual then had the capacity to exercise the power.
(b) No change of circumstances other than those described in this section and in Section 62-2-803 effects a revocation.
(c) Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, the divorce or annulment of a marriage:
(1) revokes any revocable:
(i) disposition or appointment of property or beneficiary designation made by a divorced individual to the divorced individual's former spouse in a governing instrument;
(ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse; or
(iii) nomination in a governing instrument, nominating a divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative, trustee, conservator, agent, attorney in fact or guardian;
(2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship so that the share of the decedent passes as the decedent's property and the former spouse has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions, and any other form of co-ownership with survivorship incidents.
(d) A severance under subsection (c)(2) does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving the property, as evidence of ownership.
(e) Provisions of a governing instrument and nomination in a fiduciary or representative capacity that are revoked by this section are given effect as if the former spouse predeceased the decedent.
(f) Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment.
(g)(1) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken any other action in good faith reliance on the validity of the governing instrument, before the payor or other third party received written notice of the divorce, annulment, or remarriage. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section.
(2) Written notice of the divorce, annulment, or remarriage under subsection (g)(1) must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment, or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
(h)(1) A person who purchases property from a former spouse or any other person for value and without notice, or who receives from a former spouse or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
(2) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 24; 2013 Act No. 100, § 1, eff January 1, 2014; 2018 Act No. 250 (H.4673), § 1, eff May 18, 2018.
SECTION 62-2-508. Revival of revoked will.
(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 62-2-506(a)(2) the previous will remains revoked unless it is revived. The previous will is revived if it appears by clear and convincing evidence that the testator intended to revive or make effective the previous will.
(b) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Section 62-2-506(a)(2), a revoked part of the previous will is revived unless it appears by clear and convincing evidence that the testator did not intend the revoked part to take effect as executed.
(c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-509. Incorporation by reference.
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-510. Additions to trusts.
(A) A devise made by a will to the trustee of a trust to a trust is valid so long as:
(1) the trust is identified in the testator's will and its terms are set forth in:
(a) a written instrument (other than a will) executed before, concurrently with, or after the execution of the testator's will but not later than the testator's death; or
(b) in the valid last will of another individual who has predeceased the testator;
(B) The trust is not required to have a trust corpus other than the expectancy of receiving the testator's devise.
(C) The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or after the death of the testator.
(D) Unless the testator's will provides otherwise, the property so devised:
(1) is not deemed to be held under a testamentary trust of the testator but becomes a part of the trust to which it is given; and
(2) shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before or after the death of the testator.
(E) Unless the testator's will provides otherwise, a revocation or termination of the trust before the death of the testator causes the devise to lapse.
(F) Death benefits of any kind, including but not limited to proceeds of life insurance policies and payments under an employees' trust, or contract of insurance purchased by such a trust, forming part of a pension, stock-bonus or profit-sharing plan, or under a retirement annuity contract, may be paid to the trustee of a trust established by the insured, employee, or annuitant or by some other person if the trust is in existence at the death of the insured, employee, or annuitant, it is identified and its terms are set forth in a written instrument, and such death benefits shall be administered and disposed of in accordance with the provisions of the instrument setting forth the terms of the trust including any amendments made thereto before the death of the insured, employee, or annuitant and, if the instrument so provides, including any amendments to the trust made after the death of the insured, employee, or annuitant. It shall not be necessary to the validity of any such trust instrument, whether revocable or irrevocable, that it have a trust corpus other than the right of the trustee to receive such death benefits.
(G) Death benefits of any kind, including but not limited to proceeds of life insurance policies and payments under an employees' trust, or contract of insurance purchased by such a trust, forming part of a pension, stock-bonus, or profit-sharing plan, or under a retirement annuity contract, may be paid to a trustee named, or to be named, in a will which is admitted to probate as the last will of the insured or the owner of the policy, or the employee covered by such plan or contract, as the case may be, whether or not such will is in existence at the time of such designation. Upon the admission of such will to probate, and the payment thereof to the trustee, such death benefits shall be administered and disposed of in accordance with the provisions of the testamentary trust created by the will as they exist at the time of the death of the testator. Such payments shall be deemed to pass directly to the trustee of the testamentary trust and shall not be deemed to have passed to or be receivable by the executor of the estate of the insured, employee, or annuitant.
(H) In the event no trustee makes proper claim to the proceeds payable as provided in subsections (F) and (G) of this section from the insurance company or the obligor within a period of one year after the date of the death of the insured, employee, or annuitant, or if satisfactory evidence is furnished to the insurance company or other obligor within such one year period that there is or will be no trustee to receive the proceeds, payment must be made by the executors or administrators of the person making such designations, unless otherwise provided by agreement.
(I) Death benefits payable as provided in subsections (F) and (G) of this section shall not be subject to the debts of the insured, employee, or annuitant nor to transfer or estate taxes to any greater extent than if such proceeds were payable to the beneficiary of such trust and not to the estate of the insured, employee, or annuitant.
(J) Such death benefits payable as provided in subsections (F) and (G) of this section so held in trust may be commingled with any other assets which may properly come into such trust.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-511. Events of independent significance.
A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will of another person is such an event.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-512. Separate writing identifying bequest of tangible property.
A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect upon the dispositions made by the will.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 25; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 6
Construction
SECTION 62-2-601. Rules of construction and intention; reformation of will.
(A) The intention of a testator as expressed in the testator's will controls the legal effect of the testator's dispositions. The rules of construction expressed in the succeeding sections of this part apply unless a contrary intention is indicated by the will.
(B) Notwithstanding subsection (A), the court may reform the terms of the will, even if unambiguous, to conform the terms to the testator's intention if it is proved by clear and convincing evidence that the testator's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-602. Construction that will passes all property; after-acquired property.
A will is construed to pass all property which the testator owns at the testator's death including property acquired after the execution of the will and all property acquired by the testator's estate after the testator's death.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-603. Anti-lapse; deceased devisee; class gifts.
(A) Unless a contrary intent appears in the will, if a devisee, who is a great-grandparent or a lineal descendant of a great-grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree than those of more remote degree take by representation.
(B) One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.
(C) Words of survivorship in a devise to an individual, such as, "if he survives me," or to "my surviving children," are, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of subsections (A) and (B).
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-604. Failure of testamentary provision.
(A) Except as provided in Section 62-2-603, if a devise other than a residuary devise fails for any reason it becomes a part of the residue.
(B) Except as provided in Section 62-2-603 if the residue is devised to two or more persons, the share of the residuary devisees that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-605. Change in securities; accessions; nonademption.
(A) If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
(1) as much of the devised securities as is a part of the testator's estate at the time of the testator's death;
(2) any additional or other securities of the same organization owned by the testator by reason of action initiated by the organization or any successor, related or acquiring organization excluding any acquired by exercise of purchase options;
(3) securities of another organization owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the organization or any successor, related or acquiring organization;
(4) any additional securities of the organization owned by the testator as a result of a plan of reinvestment in the organization.
(B) Distributions in cash declared prior to death with respect to a specifically devised security not provided for in subsection (A) are not part of the specific devise.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 26; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-606. Nonademption of specific devises in certain cases; unpaid proceeds of sale, condemnation, or insurance; sale by conservator.
(a) A specific devisee has the right to the specifically devised property in the testator's estate at the testator's death and to:
(1) any balance of the purchase price (together with any mortgage or other security interest) owed by a purchaser to the testator at the testator's death by reason of sale of the property;
(2) any amount of a condemnation award for the taking of the property unpaid at the testator's death;
(3) any proceeds unpaid at the testator's death on fire or casualty insurance or on other recovery for injury to the property;
(4) any property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.
(b) If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or a condemnation award or insurance proceeds or recovery for injury to the property is paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery.
(c) The right of the specific devisee under subsection (b) is reduced by the value of any right he has under subsection (a).
(d) For purposes of references in subsection (b) to a conservator, subsection (b) does not apply if after the sale, mortgage, condemnation, casualty or recovery, it was adjudicated that the testator's disability ceased and the testator survived the adjudication for at least one year.
(e) For purposes of references in subsection (b) to an agent acting within the authority of a durable power of attorney for an incapacitated principal, (i) "incapacitated principal" means a principal who is an incapacitated person, (ii) no adjudication of incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-607. Nonexoneration.
A specific devise passes subject to any mortgage, pledge, security interest or other lien existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 27; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-608. Exercise of power of appointment.
A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-609. Construction of generic terms to accord with relationships as defined for intestate succession.
Half bloods, adopted persons, and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-610. Ademption by satisfaction.
(a) Property which a testator gave in the testator's lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if:
(i) the will provides for deduction of the lifetime gift;
(ii) the testator declared in a contemporaneous writing that the gift is to be deducted from the devise; or
(iii) the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise.
(b) For purpose of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or at the testator's death, whichever occurs first.
(c) If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying Sections 62-2-603 and 62-2-604, unless the testator's contemporaneous writing provides otherwise.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-611. Construction that devise passes fee simple.
A devise of land is construed to pass an estate in fee simple, regardless of the absence of words of limitation in the devise.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-612. Proceeding to determine decedent's intent regarding application of certain federal tax formulas.
The personal representative, trustee, or any affected beneficiary under a will, trust, or other instrument of a decedent who dies or did die after December 31, 2009, and before January 1, 2011, may bring a proceeding to determine the decedent's intent when the will, trust, or other instrument contains a formula that is based on the federal estate tax or generation-skipping tax.
HISTORY: 2010 Act No. 251, § 1, eff June 11, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 7
Contractual Arrangements Relating to Death
SECTION 62-2-701. Contracts concerning succession.
A contract to make a will or devise, or to revoke a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date of this act, can be established only by (1) provisions of a will of the decedent stating material provisions of the contract; (2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract and extrinsic evidence proving the terms of the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 28; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 8
General Provisions
SECTION 62-2-801. Disclaimer.
(a) This section applies to disclaimers of any interest in or power over property, whenever created, and, in addition to other methods, is the means by which a disclaimer may be made under the laws of this State.
(b) For purpose of this section:
(1) "Disclaimer" means any writing which disclaims, renounces, declines, or refuses an interest in or power over property.
(2) "Disclaimant" means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made.
(3) "Disclaimed interest" means the interest that would have passed to the disclaimant had the disclaimer not been made.
(4) "Fiduciary" means a personal representative, trustee, agent acting under a power of attorney, guardian, conservator, or other person authorized to act as a fiduciary with respect to the property of another person.
(c)(1) A person may disclaim, in whole or in part, any interest in or power over property, including a power of appointment.
(2) Unless barred, a disclaimer must be made within a reasonable time after the disclaimant acquires actual knowledge of the interest. A disclaimer is conclusively presumed to have been made within a reasonable time if made within nine months after the date of effectiveness of the transfer as determined under subsection (d)(3).
(3) To be effective, a disclaimer must be:
(i) in writing;
(ii) declare the writing as a disclaimer;
(iii) describe the interest or power disclaimed; and
(iv) be delivered to the transferor of the interest, the transferor's fiduciary, the holder of the legal title to or the person in possession of the property to which the interest relates, or a court that would have jurisdiction over such interest or subject matter. A disclaimer of a power must be delivered as if the power disclaimed were an interest in property. Delivery of a disclaimer may be made by personal delivery, first-class mail, or any other method that results in its receipt. A disclaimer sent by first-class mail shall be deemed to have been delivered on the date it is postmarked.
(4) A disclaimer is not a transfer, assignment, or release if made within a reasonable time after the disclaimant acquires actual knowledge of the interest and if not otherwise barred.
(5) A barred disclaimer is ineffective as a disclaimer under this section. A disclaimer is barred by any of the following conditions occurring before the disclaimer becomes effective:
(i) the disclaimant waived in writing the right to disclaim;
(ii) the disclaimant accepted the interest sought to be disclaimed;
(iii) the disclaimant voluntarily assigned, conveyed, encumbered, pledged, transferred, or directed the interest sought to be disclaimed or has contracted to do so; or
(iv) a judicial sale of the interest sought to be disclaimed has occurred.
(6) A disclaimer is not barred by a spendthrift provision or similar restriction on transfer or the right to disclaim imposed by the creator of the interest in or power over the property.
(7) A disclaimer is not barred by a disclaimant's financial condition, whether or not insolvent, and a disclaimer that complies with this section is not a fraudulent transfer under the laws of this State.
(8) A disclaimer, in whole or in part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
(9) A disclaimer, in whole or in part, of the future exercise of a power not held in a fiduciary capacity is not barred unless the power is exercisable in favor of a disclaimant.
(10) Unless a disclaimer is barred, a disclaimer treated as a qualified disclaimer pursuant to Internal Revenue Code Section 2518 is effective as a disclaimer under this section.
(d)(1) If a disclaimant makes a disclaimer with respect to any transferor's transfer (including transfers by any means whatsoever, lifetime and testamentary, voluntary and by operation of law, initial and successive, by grant, gift, trust, contract, intestacy, wrongful death, elective share, forced share, homestead allowance, exempt property, devise, bequest, beneficiary designation, survivorship provision, exercise and nonexercise of a power, and otherwise) to the disclaimant of any interest in, including any power with respect to, property, or any undivided portion thereof, the interest, or such portion, is considered never to have been transferred to the disclaimant.
(2) Unless the transferor has provided otherwise in the event of a disclaimer, the disclaimed interest shall be transferred (or fail to be transferred), as if the disclaimant had predeceased the date of effectiveness of the transfer of the interest. The disclaimer shall relate back to that date of effectiveness for all purposes, and any future interest which is provided to take effect in possession or enjoyment after the termination of the disclaimed interest shall take effect as if the disclaimant had predeceased the date on which he or she as the taker of the disclaimed interest became finally ascertained and the disclaimed interest became indefeasibly vested. Provided, that an interest disclaimed by a disclaimant who is the spouse of a decedent, the transferor of the interest, may pass by any further process of transfer to such spouse, notwithstanding the treatment of the transfer of the disclaimed interest as if the disclaimant had predeceased.
(3) The date of effectiveness of the transfer of the disclaimed interest is (i) as to transfers by intestacy, wrongful death, elective share, forced share, homestead allowance, exempt property allowance, and devise and bequest, the date of death of the decedent transferor, or that of the donee of a testamentary power of appointment (whether exercised or not exercised) with respect to, the interest, as the case may be, and (ii) as to all other transfers, the date of effectiveness of the instrument, contract, or act of transfer.
(e)(1) If and to the extent an instrument creates a fiduciary relationship and expressly grants the fiduciary the right to disclaim, the fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment. If there is no instrument expressly granting the fiduciary the right to disclaim, the fiduciary's right to disclaim shall be determined by the laws of this State applicable to that fiduciary relationship.
(2) If a trustee disclaims an interest in property that otherwise would have become trust property, the disclaimed interest does not become trust property.
(3) A fiduciary may disclaim a power held in a fiduciary capacity. If the power has not been previously exercised, the disclaimer takes effect as of the time the instrument creating the power became irrevocable. If the power has been previously exercised, the disclaimer takes effect immediately after the last exercise of the power. The disclaimer of a fiduciary power may be made binding on any successor fiduciary if the disclaimer so provides.
(4) If no conservator or guardian has been appointed, a parent may disclaim on behalf of that parent's minor child and unborn issue, in whole or in part, any interest in or power over property which the minor child or unborn issue is to receive as a result of another disclaimer, but only if the disclaimed interest or power does not pass outright to that parent as a result of the disclaimer.
(f) A fiduciary or other person having custody of the disclaimed interest is not liable for any otherwise proper distribution or other disposition made without actual notice of the disclaimer or, if the disclaimer is barred pursuant to subsection (c)(5), for any otherwise proper distribution or other disposition made in reliance on the disclaimer, if the distribution or disposition is made without actual knowledge of the facts constituting the bar of the right to disclaim.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 70 § 7; 1990 Act No. 521, § 29; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-802. Effect of divorce, annulment, decree of separate maintenance, or order terminating marital property rights.
(a) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separate maintenance that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(b) For purposes of Parts 1, 2, 3, and 4 of Article 2 [Sections 62-2-101 et seq., 62-2-201 et seq., 62-2-301 et seq., and 62-2-401 et seq.] and of Section 62-3-203, a surviving spouse does not include:
(1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this State, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or live together as husband and wife at the time of the decedent's death;
(2) an individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person;
(3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent's death; or
(4) an individual claiming to be a common law spouse who has not been established to be a common law spouse by an adjudication commenced before the death of the decedent or within the later of eight months after the death of the decedent or six months after the initial appointment of a personal representative; if the action is commenced after the death of the decedent, proof must be by clear and convincing evidence.
(c) A divorce or annulment is not final until signed by the court and filed in the office of the clerk of court.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 9; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-803. Effect of homicide on intestate succession, wills, joint assets, life insurance, and beneficiary designations.
(a) An individual who feloniously and intentionally kills the decedent is not entitled to any benefits under the decedent's will, trust of which the decedent is a grantor or under this article with respect to the decedent's estate, including, but not limited to, an intestate share, an elective share, an omitted spouse's share or child's share, a homestead allowance, and exempt property, and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.
(b) Any joint tenant who feloniously and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as the decedent's property and the killer has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions, and any other form of co-ownership with survivorship incidents.
(c) A named beneficiary of a bond, life insurance policy, retirement plan, annuity, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the individual upon whose life the policy is issued is not entitled to any benefit under the bond, policy, retirement plan, annuity, or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.
(d) Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section. A beneficiary whose interest is increased as a result of feloniously and intentionally killing shall be treated in accordance with the principles of this section.
(e) The felonious and intentional killing of the decedent revokes the nomination of the killer in a will or other document nominating or appointing the killer to serve in any fiduciary capacity or representative capacity, including, but not limited to, as personal representative, trustee, agent or guardian.
(f) A final judgment by conviction, or guilty plea establishing criminal accountability of felonious and intentional killing the decedent conclusively establishes that the convicted individual feloniously and intentionally killed the decedent for purposes of this section. In the absence of such final judgment the court, upon the petition of an interested person, must determine whether, upon the preponderance of the evidence standard, the individual would be found responsible for the felonious and intentional killing of the decedent. If the court determines that, under that standard, the individual would be responsible for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent's killer for purposes of this section.
(g) This section does not affect the rights of any person who, before rights under this section have been adjudicated, purchases from the killer, for value and without notice, property which the killer would have acquired except for this section, but the killer is liable for the amount of the proceeds or the value of the property. Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section.
(h) If an individual feloniously and intentionally kills the decedent, and if the killer dies within one hundred twenty hours of the decedent's death, then the decedent shall be deemed to have survived the killer for purposes of distributing the killer's estate, including, but not limited to, property passing by intestacy, the killer's will, any trust of which the killer is a grantor, joint tenancy with right of survivorship and benefits payable under a life insurance policy, retirement plan, annuity or other contractual arrangement.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 10; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-804. Effect of provision for survivorship on succession to joint tenancy.
When any individual is seized or possessed of any real property held in joint tenancy at the time of the individual's death, the joint tenancy is deemed to have been severed by the death of the joint tenant and the real property is distributable as a tenancy in common unless the instrument which creates the joint tenancy in real property, including any instrument in which one individual conveys to himself and one or more other persons, or two or more persons convey to themselves, or to themselves and another or others, expressly provides for a right of survivorship, in which case the severance does not occur. While other methods for the creation of a joint tenancy in real property may be utilized, an express provision for a right of survivorship is conclusively considered to have occurred if the will or instrument of conveyance contains the names of the devisees or grantees followed by the words "as joint tenants with right of survivorship and not as tenants in common".
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 14; 1996 Act No. 405, § 1; 2000 Act No. 398, § 3; 2010 Act No. 266, § 1, eff June 24, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-805. Presumption of ownership of tangible personal property; exceptions.
(A) For purposes of this article, tangible personal property in the joint possession or control of the decedent and the surviving spouse at the time of the decedent's death is presumed to be owned by the decedent and the decedent's spouse in joint tenancy with right of survivorship if ownership is not evidenced otherwise by a certificate of title, bill of sale, or other writing. This presumption does not apply to property:
(1) acquired by either spouse before marriage;
(2) acquired by either spouse by gift or inheritance during the marriage;
(3) used by the decedent spouse in a trade or business in which the surviving spouse has no interest;
(4) held for another; or
(5) specifically devised in a will or devised in a written statement or list disposing of tangible personal property pursuant to Section 62-2-512.
(B) The presumption created in this section may be overcome by a preponderance of the evidence demonstrating that ownership was held other than in joint tenancy with right of survivorship.
HISTORY: 2010 Act No. 266, § 2, eff June 24, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-806. Modification to achieve testator's tax objectives.
To achieve the testator's tax objectives, the personal representative or any interested person may file a summons and petition requesting the court, after notice and a hearing, to issue an order modifying the terms of a testator's will in a manner not contrary to the testator's probable intent. The court may provide that the modification has retroactive effect.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
Part 9
Delivery and Suppression of Wills
SECTION 62-2-901. Delivery of will to judge of probate; filing.
(a) After the death of a testator, a person having custody of a will of the testator shall deliver such will, within thirty days of actual notice or knowledge of the testator's death to the judge of the probate court having jurisdiction to admit the same or to a person named as personal representative in the will who shall deliver the will to the judge of the probate court. Upon receipt of the will, the judge of probate shall file the same in probate court and if proceedings for the probate are not begun within thirty days the judge shall publish a notice of such delivery and filing in one of the newspapers in the county of the probate court for once a week for three consecutive weeks.
(b) Any person who intentionally or fraudulently destroys, suppresses, conceals, or fails to deliver the will to the judge of the probate court having jurisdiction to admit it to probate is liable to any person aggrieved for any damages that may be sustained by such action or inaction.
(c) Any person who intentionally or fraudulently destroys, suppresses, conceals, or fails to deliver the will to the judge of the probate court having jurisdiction to admit it to probate, after being ordered by the court in a proceeding brought for the purpose of compelling delivery, is subject to a penalty for contempt of court.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 15; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 10
Uniform Fiduciary Access to Digital Assets
SECTION 62-2-1010. Definitions.
As used in this part:
(1) "Account" means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.
(2) "Agent" means an attorney-in-fact granted authority under a durable or nondurable power of attorney.
(3) "Carries" means engages in the transmission of an electronic communication.
(4) "Catalogue of electronic communications" means information that identifies each person with whom a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.
(5) "Conservator" means a person appointed by a court to manage the estate of a living individual. The term includes a limited conservator.
(6) "Content of an electronic communication" means information concerning the substance or meaning of the communication that:
(a) has been sent or received by a user;
(b) is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public; and
(c) is not readily accessible to the public.
(7) "Court" has the meaning specified in Section 62-1-201(5).
(8) "Custodian" means a person that carries, maintains, processes, receives, or stores a digital asset of a user.
(9) "Designated recipient" means a person chosen by a user using an online tool to administer digital assets of the user.
(10) "Digital asset" means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
(11) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(12) "Electronic communication" has the meaning as specified in 18 U.S.C. Section 2510(12), as amended.
(13) "Electronic-communication service" means a custodian that provides to a user the ability to send or receive an electronic communication.
(14) "Fiduciary" means an original, additional, or successor personal representative, conservator, agent, or trustee.
(15) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.
(16) "Online tool" means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
(17) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality, or other legal entity.
(18) "Personal representative" has the meaning specified in Section 62-1-201(33).
(19) "Power of attorney" means a record that grants an agent authority to act in the place of a principal.
(20) "Principal" means an individual who grants authority to an agent in a power of attorney.
(21) "Protected person" has the meaning specified in Section 62-5-101(3). The term includes an individual for whom an application for the appointment of a conservator is pending.
(22) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(23) "Remote-computing service" means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. Section 2510(14), as amended.
(24) "Terms-of-service agreement" means an agreement that controls the relationship between a user and a custodian.
(25) "Trustee" has the meaning specified in Section 62-7-103(19). The term includes a successor trustee.
(26) "User" means a person who has an account with a custodian.
(27) "Will" has the meaning specified in Section 62-1-201(52).
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1015. Application of part.
(A) This part applies to a:
(1) fiduciary acting under a will or power of attorney executed before, on, or after the effective date of this act;
(2) personal representative acting for a decedent who died before, on, or after the effective date of this act;
(3) conservatorship proceeding, commenced before, on, or after the effective date of this act; and
(4) trustee acting under a trust created before, on, or after the effective date of this act.
(B) This part applies to a custodian if the user resides in this State or resided in this State at the time of the user's death.
(C) This part does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1020. User direction for disclosure of digital assets.
(A) A user may use an online tool to direct the custodian to disclose or not to disclose to a designated recipient some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.
(B) If a user has not used an online tool to give direction under subsection (A) or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.
(C) A user's direction under subsection (A) or (B) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1025. Terms-of-service agreement.
(A) This part does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
(B) This part does not give a fiduciary or a designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
(C) A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under Section 62-2-1020.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1030. Procedure for disclosing digital assets.
(A) When disclosing digital assets of a user under this part, the custodian may at its sole discretion:
(1) grant a fiduciary or designated recipient full access to the user's account;
(2) grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
(3) provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
(B) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this part.
(C) A custodian need not disclose under this part a digital asset deleted by a user.
(D) If a user directs or a fiduciary requests a custodian to disclose under this part some, but not all, of the user's digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
(1) a subset limited by date of the user's digital assets;
(2) all of the user's digital assets to the fiduciary or designated recipient;
(3) none of the user's digital assets; or
(4) all of the user's digital assets to the court for review in camera.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1035. Disclosure of content of electronic communications of deceased user.
If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the death certificate of the user;
(3) a certified copy of the letter of appointment of the representative or a small estate affidavit or court order;
(4) unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications; and
(5) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(b) evidence linking the account to the user; or
(c) a finding by the court that:
(i) the user had a specific account with the custodian, identifiable by the information specified in subitem (a);
(ii) disclosure of the content of electronic communications of the user would not violate 18 U.S.C. Section 2701, et seq., as amended, 47 U.S.C. Section 222, as amended, or other applicable law;
(iii) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
(iv) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1040. Disclosure of other digital assets of deceased user.
Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the death certificate of the user;
(3) a certified copy of the letter of appointment of the representative or a small estate affidavit or court order; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(b) evidence linking the account to the user;
(c) an affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or
(d) a finding by the court that:
(i) the user had a specific account with the custodian, identifiable by the information specified in subitem (a); or
(ii) disclosure of the user's digital assets is reasonably necessary for administration of the estate.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1045. Disclosure of content of electronic communications of principal.
To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) an original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
(3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(b) evidence linking the account to the principal.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1050. Disclosure of other digital assets of principal.
Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) an original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
(3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(b) evidence linking the account to the principal.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1055. Disclosure of digital assets held in trust when trustee is original user.
Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1060. Disclosure of contents of electronic communications held in trust when trustee not original user.
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the trust instrument or a certification of the trust under Section 62-7-1013 which includes consent to disclosure of the content of electronic communications to the trustee;
(3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(b) evidence linking the account to the trust.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1065. Disclosure of other digital assets held in trust when trustee not original user.
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the trust instrument or a certification of the trust under Section 62-7-1013;
(3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(b) evidence linking the account to the trust.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1070. Disclosure of digital assets to conservator of protected person.
(A) After an opportunity for a hearing under Article 5 of this title, the court may grant a conservator access to the digital assets of a protected person.
(B) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalogue of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and
(3) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or
(b) evidence linking the account to the protected person.
(C) A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the conservator authority over the protected person's property.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1075. Fiduciary duty and authority.
(A) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including the:
(1) duty of care;
(2) duty of loyalty; and
(3) duty of confidentiality.
(B) A fiduciary's or designated recipient's authority with respect to a digital asset of a user:
(1) except as otherwise provided in Section 62-2-1020, is subject to the applicable terms of service;
(2) in the case of a fiduciary, is subject to other applicable law, including copyright law;
(3) is limited by the scope of the fiduciary's duties; and
(4) may not be used to impersonate the user.
(C) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
(D) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including this state's law on unauthorized computer access.
(E) A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal, or settlor:
(1) has the right to access the property and any digital asset stored in it; and
(2) is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including this state's law regarding unauthorized computer access.
(F) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
(G) A fiduciary of a user may request a custodian to terminate the user's account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:
(1) if the user is deceased, a certified copy of the death certificate of the user;
(2) a certified copy of the letter of appointment of the representative or a small estate affidavit or court order, power of attorney, or trust giving the fiduciary authority over the account; and
(3) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(b) evidence linking the account to the user; or
(c) a finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subitem (a).
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1080. Custodian compliance and immunity.
(A) Not later than sixty days after receipt of the information required under Sections 62-2-1035 through 62-2-1075, a custodian shall comply with a request under this part from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
(B) An order under subsection (A) directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. Section 2702, as amended.
(C) A custodian may notify the user that a request for disclosure or to terminate an account was made under this part.
(D) A custodian may deny a request under this part from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request.
(E) This part does not limit a custodian's ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this part to obtain a court order which:
(1) specifies that an account belongs to the protected person or principal;
(2) specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
(3) contains a finding required by law other than this part.
(F) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this part.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1085. Uniformity of application and construction.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1090. Electronic Signatures in Global and National Commerce Act.
This uniform act modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016. |
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