- Jurisdiction
- South Carolina
Forum readers,
Our mother passed away recently in South Carolina, yet she was legally married to another man who was not the father to me and my brother. Our mother made me her estate's executor and named me with 100% of the residuary estate, which was not much in the grand scheme of things. That being said, we have a family business S-corp upon which my brother owns 10% and I 30%. The business and its assets are the largest single thing the family owns. Mom owned the other 60%, which I assumed went to me as she did not notate who her shares would go to as per the residuary estate holder, until I found our parents divorce agreement and read it for the first time. The divorce decree (from the 1980's) from our parents states if one of our parents dies, any shares they own should be given to the child with less shares, my brother, until we both have equal shares. Whatever is left over would be split evenly between us, essentially giving us a 50/50 of the S-corp. This was signed by both of our parents, witnessed, notarized and filed with the county court as their final divorce agreement. Fast forward over 30 years later and our mom's husband is trying to claim 1/3 elective share of the estate, which we think he is entitled to 1/3 of the S-Corp.
So I have a few questions for those here, although we have just hired lawyers to handle this. The lawyers think the s-corp will have to go through probate. Would not the divorce decree supersede any 1/3 elective share claim made by our Mom's husband to claim a portion of the S-corp? Even if the husband could make such a claim, would not any assets willed to him by our Mom offset his elective share? And if he were to get 1/3 share of the probated estate, would it not just be 1/3 of the 60% Mom owned of the S-corp (20%)? On top of that, how can the husband make a claim on this if I am the residuary estate holder?
Thanks for your input.
Confused about Probate.
Our mother passed away recently in South Carolina, yet she was legally married to another man who was not the father to me and my brother. Our mother made me her estate's executor and named me with 100% of the residuary estate, which was not much in the grand scheme of things. That being said, we have a family business S-corp upon which my brother owns 10% and I 30%. The business and its assets are the largest single thing the family owns. Mom owned the other 60%, which I assumed went to me as she did not notate who her shares would go to as per the residuary estate holder, until I found our parents divorce agreement and read it for the first time. The divorce decree (from the 1980's) from our parents states if one of our parents dies, any shares they own should be given to the child with less shares, my brother, until we both have equal shares. Whatever is left over would be split evenly between us, essentially giving us a 50/50 of the S-corp. This was signed by both of our parents, witnessed, notarized and filed with the county court as their final divorce agreement. Fast forward over 30 years later and our mom's husband is trying to claim 1/3 elective share of the estate, which we think he is entitled to 1/3 of the S-Corp.
So I have a few questions for those here, although we have just hired lawyers to handle this. The lawyers think the s-corp will have to go through probate. Would not the divorce decree supersede any 1/3 elective share claim made by our Mom's husband to claim a portion of the S-corp? Even if the husband could make such a claim, would not any assets willed to him by our Mom offset his elective share? And if he were to get 1/3 share of the probated estate, would it not just be 1/3 of the 60% Mom owned of the S-corp (20%)? On top of that, how can the husband make a claim on this if I am the residuary estate holder?
Thanks for your input.
Confused about Probate.