South Carolina was one of just a few states left to recognize common-law marriage. That is no longer true. On July 24, 2019, the South Carolina Supreme Court abolished common-law marriage in South Carolina. In Stone v. Thompson, Opinion No. 27908, Justice Kaye G. Hearn, writing for the Court, held,
"We have concluded the institution's foundations have eroded with the passage of time and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it. Therefore, from this date forward - that is, purely prospectively - parties may no longer enter into a valid marriage in South Carolina without a license." Stone v. Thompson
There is now only one way to get married in South Carolina - by obtaining a marriage license. In reaching its decision, the Court reviewed the historical origins of common-law marriage, recent trends in other states, and the difficulty common-law marriage presents for courts in determining whether parties have entered into a common-law marriage in a particular case. Justice Hearn wrote,
"[C]ourts struggle mightily to determine if and when parties expressed the requisite intent to be married, which is entirely understandable given its subjective and circumstantial nature. The solemn institution of marriage is then reduced to a guessing game with significant ramifications for the individuals involved, as well as any third party dealing with them." Stone v. Thompson
In addition to abolishing common law marriage from this point forward, the Court clarified the test courts will apply to determine whether there is a common-law marriage, and increased the level of proof a moving party must demonstrate to prove a common law marriage. Why does this matter? Common-law marriage can derail your estate plan. Common-law spouses, like other spouse's, have rights to a share in a spouse's estate - even if the will says otherwise. Because the Supreme Court's decision is prospective only, it does not invalidate a common-law marriage that was validly in existence prior to the date of the Stone v. Thompson decision.
We will have more on this brand new decision soon and what it means for your estate plan in South Carolina. In the meantime, take a look at our valuable estate planning book, checklist, and articles full of tips and helpful information. They were written by me for residents of North and South Carolina. You can request your free download of my book by clicking on the link on this page.