In the Weeds

When Cathy Kennedy graduated fifth in her University of South Carolina School of Law class in 1981 with an 18-month-old baby in tow, she went looking for a job in the area that most interested her—probate law—but couldn’t find anything with manageable hours.

“Law firms said, ‘We don’t do 9-to-5. When you want to be a real lawyer, you can come back and talk to us,’” she recalls.

So she found her own way to break in: first as an in-house counsel, then by getting elected as the first female probate judge in Richland County.

Now when Kennedy recounts the phases of her career, she still measures how “plum” each job was in terms of its flexibility toward her other job: as mom to three kids.

At her interview with Farm Credit Banks, she was asked what she’d been doing in the month since her federal clerkship ended. She told them she’d given birth to her second child just the week before. “This was interviewing with men,” she says. “I think they were a little impressed.” 

That job was plum because there was a day care down the street, and she could make it there before 6 p.m., when it closed. “Frequently, they’d be the last little kids sitting on the curb,” she recalls.

Probate judge was even better because she had two associate judges who could take cases when she had a sick kid at home—though she worked until the day before giving birth to her third child, then took only two weeks of maternity leave. 

“I thought not only had they never elected a woman before, but here she’s having another child; I can’t very well take off two months,” Kennedy says.

If she ever struggled to balance it all, Jenny Dalrymple—who served as her clerk of court, then came back later as law clerk—never saw it, even though Kennedy was elected just before the probate code changed radically.

“She had quite a challenge, but she took it head on. She was quite formidable, tough, bold, just tons of confidence. She was quite something,” says Dalrymple, who spoke in Kennedy’s honor when she received the University of South Carolina’s Compleat Lawyer Award in 2020.

S. Alan Medlin, who has taught courses in trusts and estates at South Carolina for 40 years, says Kennedy led the way among probate judges implementing the new code in 1987 and that continued throughout her time on the bench and into private practice.

“To the extent that anybody has had a positive influence on the progress of that area of the law, she’s clearly the leader,” he says. “As important as that is to me and virtually everybody else who deals in that area, she is also as giving a person as I know.”

Medlin talks up the “innumerable good deeds” she has done for the Bar, including chairing a probate code study committee that led to changes in law in the 2010s.

“She put together a group of 75 of the best and brightest lawyers and judges,” says Medlin, who served as her reporter. “She ran it and came up with an incredible product by shepherding everyone to the finish line over a multiyear project. I’ve always said they need to erect a statue of her in front of the building. I don’t know anyone who has given more time voluntarily to the Bar.”

She’s also given time to his students, speaking to them annually for the past 15 years, on whatever needs covering at the time. And it’s just as often practical life advice as legal advice.

“A lot of my students care very much about work-life balance these days,” Medlin says. “She is the poster child for that. She talks about having her kids while she was in law school, how it’s impossible to strike a perfect balance but you have to work at it. My students love her.”

Kennedy grew up in Columbia and began her career as a high school French teacher in Spartanburg. After a semester of fielding students’ questions about how things were done in France, she decided to find out herself. She backpacked through Europe and stayed a few extra months, working as an au pair in Zurich.

Upon returning, she took the LSAT. She also married a lawyer, Richard Kennedy, but continued teaching for a few years. “When my scores were going to expire, I thought I may as well apply,” she says of law school. Coincidentally, it was probate issues that led her to take the LSAT in the first place. 

When Kennedy was 15, her great aunt Lucy died without a will. Her only remaining family were nieces and nephews, so—according to the laws of intestacy at the time—the estate was divided into thirds to the children of her three sisters. The problem is that a third went to one sister’s only child, another third went to two children of another sister, and the final third went to Kennedy’s grandmother’s six children. Kennedy’s mother thought all the nieces and nephews should share equally. “But that’s the way the law of intestacy read at the time,” Kennedy says. 

Later, when Kennedy was in college, a great uncle died with a will that designated specific shares of stock to different people, but the total was more shares than he had left at the time of his death and it was unclear how to divvy up what remained. “So those were two probate issues I found fascinating,” she says. “When I went to law school, I thought I’d like to do stuff like that.”

After school and a federal clerkship, Kennedy went to Farm Credit Banks, during which time she says her husband decided, after nine years in private practice, he wanted to go to medical school. They’d just bought a house and Kennedy was worried about becoming their breadwinner. It’s also when, at a dinner, they heard the Republican party was looking for an attorney to run against the incumbent probate judge in Richland County—the probate judgeship being the only popularly elected one in South Carolina.

“Rick turned to me and said, ‘Cathy, you’ve always loved probate, you would love to do that.’ I said, ‘Yeah, I would love the job because I love that area of law, but I don’t want to run for office,’” she recalls. “Over the next couple of months, people convinced me I should do it.”

Kennedy’s parents helped by driving around to put up signs, always careful to write down where so they could pick them up after the election and write “Re” before “Elect” to save money next time. Her kids helped, too—especially her 4-year-old daughter whose arm was just the right size for reaching out the car window and into paper boxes.

“I remember the Thanksgiving right after the election, my daughter asked, ‘What are we going to have?’ I said, ‘Turkey and stuffing.’ She said, ‘Oh no more stuffing please. I’m tired of stuffing,’” Kennedy recalls with a laugh.

Kennedy didn’t think she was likely to beat the incumbent in a county that had never had a woman probate judge, but still felt the campaign would be a good way to get her name out there and perhaps lead to a job. But then she did win.

“Then everything that had been done in the last 100 or so years was going to be thrown in the trash can,” she says. “I thought, ‘My word, what have I gotten myself into? I was apprehensive about what I was going to do.’” 

Luckily, the associate judge was an attorney under the prior administration and agreed to stay on for six months. “That was just so helpful,” Kennedy says. “I recently wrote him a letter just to thank him because it gave me an opportunity to get acclimated and study the new code and come up with procedures of how we were going to do things. It was a very challenging but very rewarding time.”

Dalrymple says she never saw Kennedy waiver in her convictions or confidence despite the difficulty.

“She was very fair and even-handed,” Dalrymple says. “It didn’t matter if it was a pro se person coming in and opening an estate for the first time in their life, or a seasoned probate attorney. Everybody had to follow the law. Anyone that came in her courtroom or her office, they did what she expected them to do, or they didn’t do well in the probate court.”

That was especially true for conservators.

“If you were appointed as conservator to deal with someone else’s funds, you had to toe the line,” Dalrymple says. “She would sit down conservators herself to go over their annual accounting. She took everything she did very seriously, but especially for incapacitated adults or minors, she was fierce.”

After 12 years and two reelections, Kennedy saw a political shift and decided to go out on a high note. “I was 49 at the time. I said, ‘I’m proud of the job I did, but if I’m going to do anything else, then it’s probably time for me to move along,’” Kennedy says.

She enrolled in a master’s in taxation program at the University of Florida, but only made it as far as Savannah before turning around, realizing she couldn’t take a year away from her children. Instead, she persuaded the University of South Carolina administration to let her audit tax law courses, after first being told that was not an option. “I said, ‘Why can’t I? I’ve already taken these for credits. I don’t need the degree. I just want the knowledge.’” 

At Nelson Mullins Riley & Scarborough, she focused on probate litigation “because there weren’t that many people in the state doing that,” she says. “It wasn’t necessarily something I enjoyed because I didn’t like to see people fight, but they needed representation, and I felt I could do a good job.”

It’s work that takes a lot of strategy, Kennedy says. In one case, a woman put in her will that she didn’t want her husband to get any of her “tax credit.” He was quite wealthy, and she’d come to believe he only married her in case she died first, so he could use her estate and gift tax exemption, the $13 million you can gift beneficiaries without incurring gift or estate taxes, which the IRS carries over between spouses.

“Strictly speaking, it’s not a tax credit. So when she died first and he died maybe six months later, his family wanted to use her unused exclusion amount, which was quite substantial,” Kennedy says.

She represented the woman’s daughter in litigation, which went on for years despite Kennedy’s counsel to end it. “She said, ‘No, this was not what my mother wanted, and my brothers and I want to uphold her wishes,’” Kennedy says. “You counsel, ‘Well, would your mother be OK with the attorneys getting so much of the estate? She wanted her assets to go to her children.’ That’s generally one of the things that I try to talk to my clients about: If you can take the money that you would have spent on litigation and settle the case for that amount, then let’s do it and be done with this.”

It’s why Kennedy feels so strongly about mediation. In one memorable case, a brother and sister were at odds and refusing to go through their father’s personal effects. 

“It came out in mediation that he could not live without his wife of 60-something years, so he killed himself, and the children were grieving and taking it out on each other,” Kennedy says. “The thing that comes out so much in probate matters is that it’s not the issue that was before the court that needed to be decided, it was all these family issues that had festered over the years. On the bench, I could decide for this side or that side. I couldn’t make them compromise. In mediation, people can compromise, and they can be in charge of their own destiny and craft a solution that moves them forward in their lives.”

After 15 years at Turner Padget, Kennedy says she’s hoping to retire soon. She even sent a letter out about her intention to scale back before the pandemic. But it’s hard to retire from the clients whose kids and grandkids she’s seen grown up. “Your clients become your friends,” she says. “You develop these relationships and it’s really hard to give it up. But, at some point, it’s time to spend some time on nonlegal things.”

For Kennedy, past president of Columbia Garden Club and Columbia Green, one of those things is gardening.

“I like to pull weeds,” she says. “I get some of my best litigation ideas out of pulling weeds because I’m thinking, but I’m not really thinking. It’s nice to get out there and just dig in dirt and plant and make things look pretty. It’s a joy to be outside. It’s a joy to see things grow.”