If my spouse died without a will, can their children claim part of our home even though we bought it during the marriage and both names are on the title? – South Carolina

Short Answer

In South Carolina, the answer depends on the deed, not just the fact that the home was bought during the marriage or that both spouses are named on the title. If the deed says the spouses owned the home as joint tenants with right of survivorship, the surviving spouse generally receives the deceased spouse’s interest automatically, and the children do not inherit part of that home through probate. If the deed does not create survivorship, the deceased spouse’s share may pass through intestacy, and the surviving children may inherit part of that share.

Understanding the Problem

The issue in South Carolina probate is whether a surviving spouse keeps the home outright or must share the deceased spouse’s ownership interest with the deceased spouse’s children after a death without a will. The key decision point is the deed language at the time of death: did the title create survivorship, or did it leave each spouse with a separate share?

Apply the Law

South Carolina separates probate property from nonprobate property. A home held with a valid right of survivorship usually passes outside probate to the surviving owner. A home held as tenants in common does not pass automatically to the surviving spouse; the deceased spouse’s ownership share becomes part of the intestate estate. The Probate Court in the county where the deceased spouse lived handles intestate estate issues, while the Register of Deeds in the county where the home sits records real estate documents. For the separately titled truck, South Carolina’s small-estate affidavit process may be available after 30 days if the entire probate estate, after liens and encumbrances, does not exceed $45,000.

Key Requirements

Deed language controls the home: Both names on the deed are not enough by themselves. The deed must create survivorship to keep the deceased spouse’s interest out of the intestate estate.
Children inherit only from the probate share: If the spouse died without a will and left children, the surviving spouse receives one-half of the intestate estate, and the children share the other one-half.
Separate title means separate analysis: A truck titled only in the deceased spouse’s name is usually probate property unless the title has a valid transfer-on-death beneficiary or another nonprobate designation.
Liens matter: A mortgage or vehicle loan does not decide who owns the property, but it must be addressed before a sale, payoff, or clear transfer.

What the Statutes Say

S.C. Code Ann. § 27-7-40 (Joint tenancy with right of survivorship in real estate) – explains how survivorship language in a deed can cause the deceased owner’s interest to vest in the surviving joint tenant and allows filing a certified death certificate with the Register of Deeds.
S.C. Code Ann. § 62-2-102 (Intestate share of surviving spouse) – gives the surviving spouse the entire intestate estate if there are no surviving issue, or one-half if there are surviving issue.
S.C. Code Ann. § 62-2-103 (Shares of heirs other than spouse) – provides that the portion not passing to the spouse passes to the deceased person’s issue.
S.C. Code Ann. § 62-3-1201 (Collection of personal property by affidavit) – allows a successor to collect certain personal property after 30 days if the net probate estate does not exceed $45,000 and no personal representative proceeding is pending or granted.
S.C. Code Ann. § 62-2-401 (Exempt property) – gives a surviving spouse priority rights in certain household items, automobiles, and personal effects up to $45,000 in value above security interests.
S.C. Code Ann. § 62-6-401 (Transfer-on-death titled personal property) – permits transfer-on-death designations for certain titled property, including vehicles, when the title was set up that way.

Analysis

Apply the Rule to the Facts: Because most assets are jointly titled, the first step is to read the deed and title documents carefully. If the home deed contains valid survivorship language, the deceased spouse’s children generally do not receive part of the home through intestacy. If the home deed lists both spouses but lacks survivorship language, the deceased spouse’s ownership share may pass under South Carolina intestacy rules, which means the surviving spouse and the deceased spouse’s children may share that probate interest. The truck is different because it is titled only in the deceased spouse’s name and has a loan balance, so it likely requires either a small-estate affidavit, a transfer-on-death title process if one exists, or a probate appointment.

Process & Timing

Who files: The surviving spouse or another proper successor. Where: For the home, the Register of Deeds in the South Carolina county where the home is located; for the truck, the Probate Court in the county where the deceased spouse was domiciled, followed by the South Carolina Department of Motor Vehicles and the lender. What: Certified death certificate for a survivorship deed; for the truck, an Affidavit for Collection of Personal Property if the estate qualifies. When: The small-estate affidavit cannot be used until 30 days after death.
If the deed has survivorship language, the surviving spouse may file a certified death certificate with the Register of Deeds to show that the deceased spouse’s interest vested by law in the surviving spouse. This does not create the survivorship right; it documents the death in the land records so future title work is cleaner.
If the deed does not have survivorship language, the Probate Court may need to identify the intestate heirs, and the children may have an ownership interest in the deceased spouse’s share. A later sale or refinance may require deeds, probate filings, or court involvement depending on the title and whether all heirs cooperate.
For the truck, if the net probate estate is $45,000 or less after liens and encumbrances, and no personal representative has been appointed or requested, a successor may ask the Probate Court to approve and countersign a small-estate affidavit after 30 days. The lender’s lien still must be handled before a clean sale or transfer. For more detail on the vehicle process, see How to Transfer a Vehicle Title After Death in South Carolina Using an Affidavit for Collection.
If the truck title has a valid transfer-on-death beneficiary or survivorship-style ownership, the DMV process may avoid a probate estate for that vehicle. If the title is solely in the deceased spouse’s name with no beneficiary, the affidavit or probate appointment usually controls the transfer authority.

Exceptions & Pitfalls

“Both names” is not the same as survivorship: A deed can name both spouses but still create a tenancy in common. In that situation, the deceased spouse’s share can pass to heirs.
South Carolina does not turn every marital home into automatic survivorship property: Buying the home during the marriage does not, by itself, prevent children from inheriting a probate share.
Children means the deceased spouse’s legal issue: Biological and adopted children generally count. Stepchildren who were not legally adopted usually do not inherit as issue under intestacy.
A later-discovered will changes the analysis: If a valid will exists, the will may control probate property instead of intestacy, subject to surviving-spouse rights.
A loan balance does not transfer title: The truck lender may require payoff, consent, or a specific title process before sale. The small-estate affidavit helps prove authority, but it does not erase a lien.
Do not assume a small estate means no court paperwork: South Carolina’s affidavit must be approved, countersigned, and filed by the Probate Court before it is used to collect the property.
County practice can vary: Probate Court filing procedures, local forms, and DMV title requirements may differ in timing and documentation. A related overview is available here: How to confirm jointly owned property with survivorship rights passes outside probate in South Carolina.

Conclusion

In South Carolina, the deceased spouse’s children can claim part of the home only if the deceased spouse owned a probate share of it. A valid survivorship deed usually keeps the home out of intestacy, but a tenancy-in-common deed can leave the children a share of the deceased spouse’s interest. The next step is to review the deed and vehicle title, then file the proper death certificate or small-estate affidavit after the 30-day waiting period if the estate qualifies.

Talk to a Probate Attorney

If you’re dealing with a spouse’s death, jointly titled property, children from the marriage or another relationship, or a vehicle titled only in the deceased spouse’s name, our firm has experienced attorneys who can help you understand your options, deadlines, and transfer steps under South Carolina probate law.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.