Updated October 8, 2026. Quick answer: No. South Carolina is a common law state. At divorce, S.C. Code section 20-3-620 says “the court shall make a final equitable apportionment between the parties” of the marital property, and at death the surviving spouse has an elective share. The IRS lists nine community property states.
South Carolina community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | The court makes a final equitable apportionment of the marital property (S.C. Code 20-3-620) |
| At a spouse’s death | An elective share of one-third of the decedent’s probate estate (S.C. Code 62-2-201) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | South Carolina Legislature; IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the South Carolina statutes say
South Carolina defines marital property by when it was acquired, not by title. Section 20-3-630 reaches property acquired during the marriage “regardless of how legal title is held”, and excludes nonmarital property such as inheritances and gifts from third parties. The history note on the apportionment section (20-3-620) ends with 2008 Act No. 361.
At divorce in South Carolina
The word is equitable, not equal: the section lists the factors the court weighs, including the duration of the marriage.
At a spouse’s death in South Carolina
Section 62-2-201 gives the surviving spouse of a domiciled decedent a “right of election to take an elective share of one-third” of the decedent’s probate estate, computed under section 62-2-202. For a decedent domiciled elsewhere, the survivor’s right in South Carolina property “is governed by the law of the decedent’s domicile at death”.
What it does to basis when the first spouse dies
Because South Carolina is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.
Computed illustration, not tax advice: suppose a South Carolina couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.
What the documents do not say
- The text read shows no change to the apportionment section after 2008.
Common mistakes
- Expecting an equal split because the statute says apportionment; the court apportions equitably on the factors.
- Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.
Related: why only half steps up in a common law state, South Carolina retirement taxes, and South Carolina probate cost.
Find the right next step for your situation
About how much do you have invested? Pick the range that fits; your next step appears immediately below.
Compare vetted advisors for couples estate planning
If your portfolio is $250,000 or more, this connects you (free, with no obligation to hire anyone) with 2 to 3 vetted advisors.
Before you start, what actually happens. The matching service is run by WiserAdvisor, an independent advisor-matching company. It opens on their site, asks for your ZIP code and a few questions, and matches you with 2 to 3 vetted advisors. It is free to you.
WiserAdvisor states the service is built for portfolios of $250,000 and above. By submitting, you consent to emails, phone calls and text messages from WiserAdvisor and up to three advisors, so expect to be contacted. Clear Money Guide may earn a referral payment for a qualifying completed form, whether or not you ever hire anyone.
Opens on WiserAdvisor’s site in a new tab.
See how an advisor plans your estate
Price the destination before you decide. The matching service below introduces you to advisers who pay to meet you.
Before you start, what actually happens. The form is run by Kapitalwise, our advisor-matching partner. Kapitalwise sends your details to advisers who pay for the introduction, so expect calls and texts. Clear Money Guide may earn a referral payment through this service, whether or not you ever hire anyone. This is free to you and there is no obligation to hire anyone.
The Kapitalwise form opens here; you stay on this page.
What happens when you press the button
It asks about nine questions: age, investable assets, location; then your name, email and phone number, and verifies the phone by text. Nothing loads and nothing reaches Kapitalwise until you press the button.
Prefer flat-fee or hourly pricing instead? Compare ranges here.
Answer againSources
- Title 20, Chapter 3, Article 5 Equitable Apportionment of Marital Property: Sections 20-3-610 to 20-3-630 (S.C. Code of Laws): https://www.scstatehouse.gov/code/t20c003.php
- Title 62, Chapter 2, Section 62-2-201 Right of elective share (S.C. Code of Laws): https://www.scstatehouse.gov/code/t62c002.php
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.