South Carolina Common Law Marriage and Estate Planning

South Carolina was one of the last states to recognize common law marriage — and one of the most dramatic to end it. On July 24, 2019, the South Carolina Supreme Court prospectively abolished common law marriage in Stone v. Thompson, ruling that no new common law marriages could be created after that date.

If you are living with a partner in South Carolina without a marriage license, this ruling has direct and severe consequences for your estate plan.

What Changed After July 2019

Before the Stone decision, couples in South Carolina could establish a valid common law marriage by demonstrating mutual agreement to be married, cohabitation, and public recognition as a married couple. No ceremony, no license, no paperwork required.

After July 24, 2019, that path is closed. Couples who began living together after that date — no matter how long they cohabit, share finances, or present themselves publicly as married — have no marital status under South Carolina law.

The practical impact on estate planning is stark:

• No inheritance rights. An unmarried partner receives nothing under South Carolina intestacy law. If your partner dies without a will naming you, their estate passes to blood relatives — parents, siblings, nieces, nephews — even if you shared a home and finances for decades.
• No elective share. The surviving spouse's right to claim one-third of the probate estate does not apply to unmarried partners.
• No exempt property allowance. The $45,000 family exemption (S.C. Code § 62-2-401) applies only to spouses and minor children.
• No medical decision-making authority. Without a healthcare power of attorney, an unmarried partner has no legal standing to make medical decisions. South Carolina's default medical decision-maker hierarchy starts with a spouse, then adult children, then parents — an unmarried partner is not on the list.

Pre-2019 Relationships: Proving It Just Got Harder

If your relationship began before July 24, 2019, you may still be able to claim a common law marriage — but the standard of proof was elevated by the same Stone decision. Courts now require clear and convincing evidence (a higher bar than the old preponderance standard) that a valid common law marriage existed before the cutoff.

The kind of evidence that matters: joint tax returns filed as married, shared property titles, insurance beneficiary designations listing the partner as "spouse," consistent public identification as husband and wife, and statements to employers or government agencies.

If you believe you have a pre-2019 common law marriage, documenting it now — while memories are fresh and records are accessible — is critical. Trying to prove it after a partner dies, when the surviving partner cannot testify to the deceased's intent, is far more difficult and expensive.

What Unmarried Couples Must Do Now

If you are in a committed relationship without a marriage license, your estate plan has to do the work that marital status would otherwise handle automatically:

1. A will naming your partner as beneficiary. This is non-negotiable. Without a will, your partner inherits nothing. Be explicit about what they receive — the house, accounts, personal property — because there is no spousal presumption to fill gaps.

2. Beneficiary designations on every account. Life insurance, retirement accounts, bank accounts (POD), and brokerage accounts (TOD) should all name your partner directly. These designations override the will, so they must be kept current.

3. Joint tenancy with right of survivorship on real estate. If you own a home together, the deed should include JTWROS language ("as joint tenants with the right of survivorship, and not as tenants in common"). Without it, the deceased partner's share goes to their intestate heirs — not to the surviving partner.

4. Healthcare power of attorney. Name your partner as your healthcare agent using the South Carolina statutory form. Without it, they have no legal authority to make medical decisions for you, visit you in certain hospital settings, or access your medical records.

5. Financial power of attorney. A durable financial power of attorney lets your partner manage bills, mortgage payments, and financial obligations if you become incapacitated — something a spouse could handle more easily through marital presumptions.

The Cost of Not Acting

The abolition of common law marriage means South Carolina treats unmarried cohabiting partners as legal strangers for inheritance purposes. A $24 estate planning kit can establish the legal protections that a marriage license would have provided automatically — protections that cost nothing to put in place during your lifetime but are impossible to create after death.

The South Carolina Basic Estate Planning Kit includes will instructions with partner protection clauses, beneficiary designation checklists, and healthcare and financial power of attorney guidance — specifically designed for South Carolina's post-2019 legal landscape.

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