VFW Post 10256

Cheating Your Spouse After Death

Can I cut my spouse out of my will? I want some pay-back for the bad things my spouse did to me in my waning days. "I’ll fix her? I’ll hit her in the pocketbook and cut her out of my will. I’ll get a last post-mortem laugh." Stingy Cheapo then went to his lawyer and had the lawyer draw up his will leaving everything he owned to the benevolent fund for the support of retired prostitutes.

When Stingy died a smile on his face went with him. Alas, Mrs Cheapo found out about Stingy’s will before the burial. So, she chose a very rainy day for Stingy’s return to the earth. When his coffin was lowered into the grave it floated in the collected rain water, symbolism for the cheapskate husband who tried to drown his wife in debt and send her into bankruptcy, thanks to the will which Crapo Lawyer drew up for Stingy.

Following the funeral and soggy burial, Mrs Cheapo went to her own lawyer to find out what she could do, if anything, about Stingy’s will. "No sweat. I’ll show you how to silence Stingy’s post-mortem laughter.", her lawyer informed her while pulling the Probate Code of Laws from the credenza behind his high backed, winged, leatherette chair. "South Carolina might grow a lot of cotton. But, South Carolina doesn’t cotton to no stingy husband trying to visit economic revenge from the grave on his surviving wife.", her lawyer continued while flipping the pages in his code book.

Using tones with a country twang he said, "Here ‘tis. This law right ‘chere says the wife gets the right to overturn her husband’s will. You can’t overturn it 100%, but like us lawyers" - her lawyer paused for effect, then continued - "you most likely will get a third. Now, I can guide you through the paperwork, right after we dispose of the retainer to me, which after all will be reimbursed to you from the 33 1/3% which you will get from your husband’s estate." Just make your check payable to me, Loophole Lawyer.

Mrs Cheapo paid the retainer after which Loophole Lawyer presented a document to her entitled, "Spousal Election for Share in Decedent’s Estate". "Sign here and I’ll take care of the rest." She signed. Loophole filed the document with the Probate Court. A hearing was held. The Judge agreed. Mrs Cheapo got paid.

She was so delighted she went back to her lawyer the next day. "The bum tried to cheat me. I don’t want his name anymore. Can you have the Court change my name.", Mrs Cheapo angrily complained. Ultimately she used some of the inheritance to pay for the name change. Using her newly awarded name, Loophole said, "Goodbye, Mrs Payback. I enjoyed working for you."

That’s right. In South Carolina, by will you can cut your spouse out of inheriting from your Estate. But it may not work, depending on the determination of your spouse. Even if you draw a will leaving everything you have to your dog, your surviving spouse (be that either the wife or the husband) can file for a "Spousal Election" and collect. If you encounter this problem after your spouse dies, consult your lawyer.

Your claim for an elective share must be filed within eight months after your spouse dies or within six months after the probate of the will. See Section 62-2-205, SC Code of Laws. A hearing is held. The Judge decides the value of the spouse’s elective share.

Living Will

What is a "Living Will?" It is a document which only takes effect "near death" or when you are "permanently unconscious". Why have a "Living Will?" There are several purposes. First, it gives your doctors and nurses clear guidance on how to medically treat you when your death is imminent or when you are unconscious permanently. This can be quite important to the doctors if you have children who do not agree on your future medical treatment. Second, it relieves your relatives of "guilt" feelings about your care while you are at the end of your life or are permanently unconscious. Thirdly, but of lesser importance, it saves your family’s assets for your loved ones who will survive.

How does a "Living Will" work? The basic and most important requirement to trigger the directions of a living will is that your death must be imminent within a short period of time and no further medical treatment will restore your health. Or, you must be in permanent state of unconsciousness. Either of these conditions must be certified and agreed upon by two doctors, one of whom must be your treating physician.

What medical procedures can be withheld under a "Living Will"? You can direct that your heart not be resuscitated if it stops beating. Why re-start your heart so you can live one more month and then die from cancer? You can direct that you not be put on a ventilator if you have difficulty breathing? Why mechanically relieve your breathing so you can live one more month and then die from kidney or liver failure?

What about food and water when you are terminal or permanently unconscious? Without a "Living Will" you most likely will be given food and water via a tube in your stomach, a tube in your upper chest, or through the nose down the esophagus. Is this necessary? You can direct that it not be done. Think about your relatives making the decision. Would they feel guilty making the decision denying you food and water at the end of your life? Make the decision for yourself and save them that guilt.

How much does a "Living Will" cost? Such a document costs about $175.00 in the lawyer market place. It can only be signed by you if you are mentally alert and capable of making your life ending/or permanently unconscious decisions in advance of having such conditions. Doctors often refer to such document as an advance directive. The State Law is sometimes referred to as the "Death with Dignity" law. Your regular treating doctor gets an original Living Will; you keep an original Living Will; other medical providers get just a copy.

Upon hospital admission, the hospital staff always asks if you have a Living Will. The hospital will furnish you one upon admission; it’s Federal Law. But, will you feel like filling out such a form given your urgent condition upon admission? Will you even be mentally alert enough for it to take effect? Retired military are able to get a Living Will from a near-by military legal office.

Durable Power of Attorney

If you lose your mind, go into a long term coma, or vegetate in a hospital or nursing home, it’s a good idea to have done a DURABLE POWER OF ATTORNEY. This is simply a business document which authorizes someone to handle your business affairs while you are not able. The document does not take affect if you are in your right mind.

Usually this type document includes the power to sell, mortgage or rent your residence. The document contains authority to sell your motor vehicle, boat, wine collection, pets and all other personal property. This document should be recorded in the land office (RMC Office) of your county of residence. It can be canceled at anytime with a TERMINATION NOTICE, which would also be recorded.

The document, with recording fees, cost about $275.00. A cheap price if you consider the alternative. Absent such a document, and you are out of your mind, the Probate Court steps in. Someone has to file a Petition in the Probate Court to appoint a CONSERVATOR. This fancy word, CONSERVATOR, is also a business agent to handle your affairs. But, in most such Probate Court actions, your assets pay for the process. Court action to appoint a business agent for the mindless person without a DURABLE POWER OF ATTORNEY can run from $5,000.00 to $10,000.00 dollars.

Who should you name as your agent in a DURABLE POWER OF ATTORNEY? It is frequently the spouse. But, sometimes that decision can blow up in your face. If you spouse goes south while you are out of your mind your money goes with him/her. Name someone you can trust. And, name them before your lose your mind because after you lose your mind the Court names your business agent, not you.

JUDGE ADVOCATE REPORT