The August 3, 2022, Supreme Court decision in Seels v. Smalls, 437 S.C. 167, 877 S.E.2d 351 (2022), affirmed that a marital dissolution action survives the death of a party. In Seels, Wife filed a separate maintenance action in October, 2014, and died in December 2015. Her brother moved to be substituted as a party and Husband moved to dismiss the case, arguing that matter had abated on Wife’s death and that only probate court could now address the parties’ property. The family court granted the brother’s motion and denied Husband’s motion, ruling claims for equitable distribution survived a party’s death.
At trial, the family court equitably apportioned the marital estate and denied Husband’s motion to dismiss for lack of subject matter jurisdiction. Husband appealed and, in an unpublished opinion, the Court of Appeals affirmed. The Supreme Court then granted certiorari solely on the issue of whether a party’s death deprived the family court of subject matter jurisdiction to determine equitable apportionment.
The Supreme Court affirmed. It found that S.C. Code Ann. § 63-3-530(A)(2) granted the family court “exclusive jurisdiction to …. to hear and determine actions for divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage and attorney’s fees, if requested by either party in the pleadings.” (emphasis in original).
It further noted:
The family court’s exclusive jurisdiction over equitable apportionment extends to marital property; it has no jurisdiction over nonmarital property. S.C. Code Ann. § 20-3-630(B) (2014). “Marital property” is defined as “all real and personal property [that] has been acquired by the parties during the marriage and [that] is owned as of the date of filing or commencement of marital litigation as provided in Section 20-3-620 regardless of how legal title is held,” except for certain classes of property that constitute nonmarital property (e.g., inherited items, gifts from a party other than the spouse, property acquired prior to marriage, property excluded by contract). Id. § 20-3-630(A) (emphasis added).
Husband argued that S.C. Code § 62-1-302 provided the probate court exclusive jurisdiction over the matter. The opinion noted that none of three areas of concurrent jurisdiction of family court and probate court applied to property division.
Husband attempted to distinguish the case of Hodge v. Hodge, 305 S.C. 521, 409 S.E.2d 436 (Ct. App. 1991), which held that a separate maintenance action seeking equitable distribution survives a party’s death. He argued that the case in Hodge was in the appellate stage when the wife died. He also argued Hodge was outdated due the changes to the equitable distribution statute. The Supreme Court noted Hodge relied upon the notion that wife’s interest in the marital estate vested upon her filing the separate maintenance action. This vesting right is now part of S.C. Code § 20-3-610 which provides each spouse has a “vested” right in the “marital property.” Finding Wife’s interest in marital property vested upon filing the marital dissolution case, it found the claim survived her death.
Almost twenty years ago, relying in part on Hodge, I wrote Family Law Issues When a Spouse or Parent Dies. I’ve assumed it was settled law that equitable distribution claims survived a party’s death and was curious why the Supreme Court accepted certiorari in Seels. What I assumed was settled law is now even more settled.
What do you think then happens in probate? They were still married at death. The family court will determine the extent of her property, of her estate basically. As her husband, he’s entitled to his share, whether it be the spousal share (with a will) or, if no will, either half or all of her estate…right?
No. Although the parties were still married at the time of the wife’s death, the husband is disqualified from claiming the rights of a “surviving spouse” by S.C. Code Ann. Sec. 62-2-802(b)(3):
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.