The December 18, 2024, South Carolina Supreme Court opinion in Weeks v. Weeks, affirms that a temporary domestic agreement addressing marital property issues does not waive a spouse’s right to seek an elective share of a deceased spouse’s estate.
In Weeks, Wife had previously initiated marital dissolution actions. During one such litigation, the Weekses entered a temporary consent order that “reached a temporary agreement as to some of their assets but planned to come back to court to sort things out with finality.” Husband died before litigation was completed. In probate court, Wife then sought her elective share: under S.C. Code Ann. § 62-2-201, one-third of the decedent spouse’s estate. The probate court disallowed her claim, finding that, pursuant to S.C. Code § 62-2-802(b)(3), the temporary consent order acted as a waiver of her elective share. That subsection excludes from the definition of surviving spouse, “an individual who was a party to a valid proceeding concluded by an order purporting to terminate all martial 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.”
In an unpublished opinion, the Court of Appeals, reversed. The Supreme Court granted certiorari to review the Court of Appeals opinion and affirmed the Court of Appeals. The Supreme Court opinion notes, “There is no such creature as a ‘temporary’ equitable distribution order. Equitable distribution occurs only by a final order of the family court.”
The Supreme Court noted that to make such an elective share waiver binding, a spouse must meet the requirements of S.C. Code Ann. § 62-2-204. That code section requires “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.” As no such waiver occurred in Weeks, the Supreme Court affirmed.
While Weeks is not a family law appeal, it does impact family law practice. A court-approved separation agreement resolving all issues of marital property and debt, or a final order of separate maintenance, does act as a waiver of a spouse’s elective share. However, temporary agreements do not act as a waiver unless the agreement meets the requirements of S.C. Code § 62-2-204. Attorneys drafting temporary consent orders with the intention of waiving a potential elective share claim if their client dies during litigation should draft temporary orders so they meet the requirements of that subsection.
