Leaving real estate to someone other than spouse

What is the name of your state (only U.S. law)? South Carolina

My husband owns a rental house in South Carolina that he bought prior to our marriage. We have not put my name on it because we were told that he would have to refinance. In discussing a need for us to make a will, he informed me that he wanted to leave that house to his brother in his will. I have heard that it would not be possible for him to do so, but since my name is not on the title, I am not certain. Can anyone give me a clear answer?

Thanks.

I have heard that it would not be possible for him to do so, but since my name is not on the title, I am not certain.

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Who is this person "I have heard?"

Your husband is free to leave his property to whomever he wishes. He does not really have to provide for you in his will at all. However, the law takes a dim view of the surviving spouse being left high and dry. You have the right to claim what is called an "elective share" of the probate estate. You can read about that here in Part 2:

S.C. Code of Laws Title 62 Disclaime The South Carolina Legislative Council Is Offering Access To The Unannotated South Carolina Code Of - www.scstatehouse.gov-LPITS

In sum, yes, he can do so. If you do not receive at least the amount of the probate estate that the elective share calls for, you can make that election which may negate the bequest to the brother, depending upon the value of the estate and the value of that specific asset left to the brother.

hi anteater,

i know some states are different. but in general - arent assets acquired before marriage, and not comingled - basically not subject to any of the marriage laws ?

how does that work, as a general rule ?

TrustUser said:

hi anteater,

i know some states are different. but in general - arent assets acquired before marriage, and not comingled - basically not subject to any of the marriage laws ?

how does that work, as a general rule ?

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With the usual caveat that "all states are different and I don't know them all..."

I don't know any state whose surviving spouse elective share statute makes that distinction. Certainly, it makes a difference in other marital property matters. And separate/community property distinctions may make a difference under intestacy statutes. But, for elective share, not that I know of.

Where there are differences between states regarding the elective share is the definition of assets that are subject to the election. For example, the SC statute referenced above (and I only read it quickly and may have missed something) seems to say that only assets in the probate estate are subject to the elective share. Other states employ the concept of an "augmented estate" subject to the elective share, which may include assets owned jointly with someone other than the surviving spouse, assets in revocable trusts, etc. And, just to add, most elective share statutes count assets passing to the surviving spouse outside of probate as part of fulfilling the elective share.