If my parent died without a will and co-owned a house with someone else, do the children inherit the parent’s share of the home? – South Carolina

Short Answer

Usually, yes—if the South Carolina deed shows that the parent owned the home as a tenant in common. The parent’s share passes to the heirs, subject to estate administration and creditor claims. However, if the deed created a valid right of survivorship, the surviving co-owner generally receives the parent’s share instead.

Understanding the Problem

The central question is whether children inherit a deceased parent’s ownership interest in a South Carolina home when the parent died without a will and the other owner was not the parent’s spouse. The answer depends first on the deed’s ownership language and then on which family members qualify as heirs when the parent died.

Apply the Law

South Carolina treats a tenancy in common differently from ownership with a right of survivorship. A tenant in common owns a separate fractional interest that can pass to heirs. By contrast, a valid survivorship provision generally transfers the deceased owner’s interest directly to the surviving owner. If the interest enters the intestate estate, the Probate Court determines the heirs, while the Court of Common Pleas handles any later partition action.

Key Requirements

Deed language: The recorded deed must be reviewed to determine whether the owners held title as tenants in common or with a right of survivorship.
Parent’s fractional interest: Only the share owned by the parent can pass through intestate succession. The surviving co-owner keeps that person’s existing share.
Identity of the heirs: If the parent left children but no surviving spouse, the children generally divide the parent’s intestate share. If a surviving spouse and children exist, the spouse receives one-half of the intestate estate and the children divide the other half.
Estate obligations: The inherited interest remains subject to estate administration, valid creditor claims, liens, and other enforceable charges.
Right to partition: Once ownership is established, a cotenant may seek division, allotment, a statutory buyout, or a sale through the Court of Common Pleas.

What the Statutes Say

S.C. Code § 27-7-40 (Joint Tenancy With Right of Survivorship) – explains when a deceased joint owner’s interest vests in the surviving owner.
S.C. Code § 62-2-102 (Surviving Spouse’s Intestate Share) – gives a surviving spouse one-half of the intestate estate when the decedent also leaves descendants.
S.C. Code § 62-2-103 (Shares of Other Heirs) – directs the remaining intestate estate to the decedent’s descendants by degree of kinship and representation.
S.C. Code § 62-3-101 (Devolution of Property at Death) – provides that intestate real property passes to heirs at death, subject to administration and creditor rights.
S.C. Code § 62-3-901 (Successors’ Rights Without Administration) – allows heirs to establish title through proof of ownership, death, and family relationship, subject to estate-related charges.
S.C. Code § 15-61-10 (Right to Partition) – permits qualifying joint owners and tenants in common to compel partition.
S.C. Code § 15-61-50 (Partition Jurisdiction and Remedies) – authorizes the Court of Common Pleas to divide property, allot it to an owner with compensation to others, or order a sale when fair division is not practical.

Analysis

Apply the Rule to the Facts: Because the other owner was not the parent’s spouse, that co-owner does not inherit merely by living in the home or appearing on the deed. If the deed created a tenancy in common, the parent’s fractional share passed to the parent’s heirs, although probate and title work may be needed before a buyout or partition can proceed. If the deed contains valid survivorship language, the surviving co-owner likely received the parent’s interest outside intestate succession.

If no surviving spouse existed, the children generally share the parent’s entire tenancy-in-common interest. If a spouse survived along with children, the spouse generally receives one-half of the parent’s intestate interest, and the children divide the remaining half. A deceased child’s descendants may take that child’s branch of the inheritance.

Process & Timing

Who files: An eligible family member may apply to administer the estate. Where: The appropriate South Carolina Probate Court, generally in the county where the parent lived, with additional procedures possible when the parent lived elsewhere. What: The filing should identify the heirs and the parent’s deeded interest. When: The family should act promptly because probate procedures and available forms can depend on how much time has passed since death.
Confirm title: Obtain the recorded deed from the Register of Deeds in the county where the home is located. Determine the ownership percentages, survivorship language, mortgages, liens, and whether the estate must address creditor claims. A personal representative generally must file an inventory and appraisal within 90 days after appointment.
Attempt a voluntary resolution: Once the owners and their shares are established, the parties can negotiate a written buyout based on an appraisal. More information appears in options when a South Carolina co-owner will not agree to a buyout.
File partition if necessary: An owner may file a partition action in the Court of Common Pleas for the county where the property sits. The court determines the ownership interests and whether the property qualifies as heirs’ property before deciding between a buyout, physical division, allotment, or sale.
Complete the court-directed transfer: If heirs’ property rules apply, eligible non-selling cotenants receive a statutory opportunity to purchase the interests of cotenants requesting a sale. If no buyout occurs and fair division or allotment would cause manifest prejudice, the court may order a sale and distribute the net proceeds according to the established interests.

Exceptions & Pitfalls

Survivorship language controls: Family expectations do not override a valid recorded right of survivorship.
A surviving spouse changes the shares: The fact that the co-owner was not a spouse does not establish that the parent had no surviving spouse elsewhere.
Occupancy does not establish full ownership: Living in the home does not, by itself, transfer the heirs’ interest to the surviving co-owner or caregiver.
A caregiver may lack signing authority: Cognitive impairment does not automatically transfer decision-making power to an adult child. A valid power of attorney or court appointment may be necessary before someone can sign a buyout agreement or deed for the surviving co-owner.
All required parties must receive notice: A partition case should identify and serve every owner and other necessary party. The court may require added protections for an owner who cannot adequately protect that person’s interests.
Sale is not always the first remedy: If the property qualifies as heirs’ property, South Carolina law provides valuation and buyout procedures and generally considers division or allotment before ordering a sale. The heirs’ property buyout process carries specific notice and payment deadlines.
Expenses can affect the accounting: Mortgages, liens, necessary property expenses, and other proper adjustments may affect the final distribution even when the ownership percentages are clear.

Conclusion

Children generally inherit a parent’s South Carolina tenancy-in-common share when the parent dies without a will, but they do not inherit an interest that passed to the other owner through a valid right of survivorship. A surviving spouse can also reduce the children’s collective share to one-half of the parent’s interest. The heirs should file the estate-opening application with the appropriate South Carolina Probate Court promptly so ownership can be documented before negotiating a buyout or pursuing partition.

Talk to a Partition Action Attorney

If a family is trying to establish an inherited share, negotiate a buyout, or seek the sale of a co-owned South Carolina home, our firm has experienced attorneys who can help explain the ownership, probate, capacity, and partition issues and the deadlines that may apply.

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.