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July 30, 2014

For those of you who live in SC and are married and own a home, do you sometimes worry you'll have to shoot a criminal and he (or his estate) sues you (even though you were never even charged with a crime) and a runaway jury of his peers awards him more money than your home owner's insurance covers (or, your insurance company denies coverage because what you did was an intentional act, not negligence) and your home is seized and sold by the sheriff at the county courthouse steps?
 
Do you worry your spouse may get on meds, go crazy and run up a big credit card bill she "forgot" to tell you about, and the same thing happens on the courthouse steps? How about if you have major health issues that ObamaCare doesn't cover and you cancelled your old insurance, do you think the friendly hospital will try to partition your house? You bet!
 
I used to worry plenty, at least about the first scenario. That is why I did some legal research in my law library and discovered the recent case of Smith v. Cutler, 366 S.C. 546 (2005) (Google it).
 
Essentially, our SC Supreme Court recognized in 2005 (actually, the court rediscovered a 1953 SC Supreme Court decision which created this new deed but that everyone had forgotten about) a new form of deed called a tenancy in common with right of survivorship (as opposed to joint tenancy with right of survivorship as you most probably have now). This deed cannot be partitioned. Our SC Supreme Court has ruled that this new deed  is "indestructible" and "not subject to defeat by the unilateral act of one co-tenant" - which means unless you and your wife shoot a criminal, your house cannot be sold to satisfy a judgment. Same way with debt - unless you both are on the credit card your house cannot be sold to satisfy the debt.
 
This is such a game changer. I know that all of you living in SC, who are married and own a home, would want to know.
 
Russ Keep, Esq.