Monthly Archives: April 2016

Does South Carolina recognize common law marriages?



UPDATED POST: Under certain circumstances, if you entered into such an arrangement before July 24, 2019, South Carolina will recognize a common law marriage. You are probably going to want, or need, to talk to an attorney about your situation sooner or later. Every situation is different. From a legal standpoint, the South Carolina Supreme Court says the following:

A common-law marriage is formed when two parties contract to be married. Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960). No express contract is necessary; the agreement may be inferred from the circumstances. Id.; Kirby v. Kirby, 270 S.C. 137, 140, 241 S.E.2d 415, 416 (1978). The fact finder is to look for mutual assent: the intent of each party to be married to the other and a mutual understanding of each party’s intent. Consideration is the participation in the marriage. If these factual elements are present, then the court should find as a matter of law that a common-law marriage exists.
9 Further, when the proponent proves that the parties participated in “apparently matrimonial” cohabitation, and that while cohabiting the parties had a reputation in the community as being married, a rebuttable presumption arises that a common-law marriage was created. Jeanes v. Jeanes, 255 S.C. 161, 166–67, 177 S.E.2d 537, 539–40 (1970). This presumption may be overcome by “strong, cogent” evidence that the parties in fact never agreed to marry. Jeanes, 255 S.C. at 167, 177 S.E.2d at 540.
Callen v. Callen, 365 S.C. 618, 624, 620 S.E.2d 59, 62 (2005)
So you can see from the legal discussion above, a party trying to prove they are common law married has to jump over a number of hurdles. Often the evidence conflicts.
As of July 24, 2019, the South Carolina Supreme Court said that common law marriage will no longer be recognized. Here is a good summary.
If you have any questions or concerns, or want further information, please call me at (803) 929-0096, and I will be glad to discuss your situation.

How much are probate fees in South Carolina?


Often people ask me how much probate costs in South Carolina. There are a number of factors that go into the cost, but the one people seem most concerned about are filing fees. The cost to get the process started and to advertise in the newspaper varies by county (in Richland to get started it is $45 or $150 to file and $55 to advertise):Here is a  list of the fees you can expect (I copied it from the Richland County, South Carolina website).

Filing Fees

South Carolina Probate Estate Fee Schedule

Size of the Regular Estate Filing Fee
 $0.00 to $4,999 $25.00
 $5,000 to $19,999  $45.00
 $20,000 to $59,999  $67.50
 $60,000 to $99,999  $95.00
 $100,000 to $599,999  $95.00 plus .0015 in excess of $100,000
 $600,000 and above  $845.00 on the 1st $600,000 plus .0025 in excess of $600,000

Small Estate Affidavit or Affidavit for Collection of Personal Property

 Less than or Equal to $100.00 $17.50
 $101.00 to $4,999.99  $30.00
 $5,000.00 to $19,999.99  $50.00
 $20.000.00 to 25,000.00  $72.50
 Includes $5.00 certification fee

*Pursuant to SC Code of Laws §8-21-770

Possible Additional Fees:

 Copies per page  $.50
 Search Fee  $3.00
 Filing Demand for Notice  $5.00
 Issuing Certified Copies  $5.00
 Filing Conservatorship Accounting  $10.00
 Filing of a Will only  $10.00
 Will Filed only Advertising Fee  $35.00
 Certifying Appeal Record  $10.00
 Probated Will Filing Fee  $10.00
 Order Issued without a Hearing  $15.00
 Issuing Exemplified/Authenticated Copies  $20.00
 Recording Authenticated or Certified Copies  $20.00
 Reopening Closed Estates  $22.50
 Application/Petition for Special Administrator  $22.50
 Application for Successor Personal Representative  $22.50
 Advertising fee for creditor’s claims (required by state law)  $55.00
 Copy of an entire estate file on CD  $52.50
 Any Summons and Complaint or Petition $150.00
 Affidavit for Access to Safe Deposit Box $22.50
 Affidavit to Obtain Bank Balance $22.50