Abatement

South Carolina’s ordinary order and exceptions

In South Carolina, distributees’ shares ordinarily bear reductions in this order:

1. Property not disposed of by the will
2. Residuary devises
3. General devises
4. Specific devises

Real and personal property receive no preference over one another. The surviving spouse’s elective share has special treatment.

If the will expresses an abatement order, shares must abate as necessary to carry out the testator’s intention. The same applies if the ordinary order would defeat the testamentary plan or a devise’s express or implied purpose.

Michigan’s ordinary order and exceptions

In Michigan, distributees’ shares ordinarily abate in this sequence: property not disposed of by the will, residuary devises, general devises, then specific devises. Real and personal property receive no preference over one another.

A different abatement order expressed in the will controls. If the ordinary order would defeat the testamentary plan or a devise’s express or implied purpose, shares abate as necessary to carry out the testator’s intention.

This sequence is subject to the classification and administration adjustments discussed below. It also has exceptions cross referenced in Michigan Compiled Laws sections 700.2301(3) and 700.2302(1)(b)(iv).

Before applying the sequence, ask counsel to review those statutory exceptions for the particular estate. Other states differ.

Sharing a reduction within a class

In South Carolina and Michigan, abatement within the classification bearing the reduction is proportional to what each beneficiary would have received upon full distribution under the will.

This allocates the reduction within that class. It does not replace either state’s ordinary order or its qualifications.

A reduction priority is not an absolute sale sequence

In South Carolina and Michigan, if the subject of a preferred devise is sold or used during administration, abatement requires appropriate adjustments in, or contributions from, other interests in the remaining assets.

The abatement order alone does not establish an absolute order for selling assets.

The will alone does not establish what is available

In Minnesota, for example, inheritance is subject to creditors’ rights, estate administration, the surviving spouse’s elective share and statutory family protections. Other states differ.

Those Minnesota qualifications include sections 525.14 and 524.2-402, plus allowances under sections 524.2-403 and 524.2-404. The will’s gifts therefore do not establish the amount available for distribution by themselves.

Two related terms

Elective share. In Minnesota, for example, this is a surviving spouse’s right, subject to statutory limits and conditions, to elect a percentage of a Minnesota domiciliary’s augmented estate based on marriage length. Other states differ.

Personal representative. In Minnesota, for example, this estate fiduciary acts after appointment by a court or registrar, qualification and issuance of letters. The fiduciary must prudently settle and distribute the estate under the probated will and applicable law, and other states differ.

Perspective on bringing expertise to the family

For a family facing unfamiliar estate questions, this passage offers a perspective on finding outside tools and bringing them back to the family discussion.

"we could Outsource inhouse find those tools that uh that we were not exposed to that that you know I can go out there into the world chew on them and then bring them back into the families in a well polished manner so especially right now a lot of that has to do with with tax advice but especially succession planning and estate planning"

Common questions