The Basics of Virginia Probate Administration…Part VII: Spousal Rights and Election

This is my seventh posting on my series of the Virginia Probate Administration concerning spousal rights.  You can read previous posts on this series including Part I: introduction to probate (here), Part II: qualifying to be the personal representative (here), Part III: the duties and liabilities of the personal representative (here), Part IV: the initial steps (here), Part V: inventory and accountings (here), and Part VI: Exemptions and Creditors (here).

Virginia, not wanting a surviving spouse to become destitute by way of the other decedent spouse disinheriting the surviving spouse from the decedent’s estate created the ability for the surviving spouse to make a claim against the estate.  A surviving spouse of a decedent domiciled in Virginia who died without a will is entitled to a portion of the estate.  The surviving spouse can also make a claim against the estate, even if the decedent made a statement in the will disinheriting the surviving spouse.  In fact, only with the consent of the surviving spouse (usually done through a pre-nuptial contract) can a spouse be excluded from inheriting part of the estate.  This is generally known as the spousal election or election. For an example on how an election might arise, see my Estate of the Month review on Steve McNair.

Six Months from Date of Probate or Qualification

The surviving spouse must file within 6 months from the date of probate of the will or the qualification of an administrator on the intestate estate a claim on the decedent’s augmented estate.  If there is a pending suit regarding the spousal share’s value or value of the estate, on petition, the court can grant an extension to filing the elective claim, but the extension can not be longer than ninety (90) days from the final order in the pending suit.

To prevent the decedent from taking actions that would limit the amount of assets in probate, like creating bank accounts with non-spouse joint tenants with rights of survivorship, and, thus, limiting a spouse’s inheritance, Virginia uses a concept called the augmented estate.  The basics idea is that the elective share claim of a spouse is based on the probate estate of the decedent augmented by other assets as defined under the law. Simply put, an augmented estate equals the probate assets of the decedent, plus assets passing upon the decedent’s death outside the probate estate, plus certain transfers by the decedent during his or her lifetime, minus assets received by the surviving spouse from the decedent through probate and non-probate means.  The augmented estate would include real and personal property. There is more to the augmented estate calculation but that is the gist.

The percentage the spouse receives of the augmented estate depends on the familial ties the decedent has when the decedent dies.  If the decedent is survived by children or descendants, the surviving spouse is entitled to one-third (1/3) of the augmented estate.  If the decedent is not survived by children or descendants, the surviving spouse is entitled to one-half (1/2) of the augmented estate.

The spouse is also protected in several additional ways.

First, Virginia protects the “omitted” spouse.  This scenario occurs when a decedent executes a will and then gets married but the spouse is not named in the will. The omitted spouse would claim and receive the same share of the augmented estate as if there was no will.

Second, Virginia allows the surviving spouse to hold, occupy, and enjoy the principal family residence without charge for rent, repairs, taxes, or insurance until the surviving spouse’s rights in the principal residence have been determined. This situation usually occurs when the decedent purchased the house prior to getting married and the surviving spouse is not named on the title of the deed to the family residence.  There could be a question as to the ownership of the house and Virginia wants to ensure that the surviving spouse has a place to live during that determination.

Lastly, if a spouse willfully deserts or abandons the decedent prior to decedent’s death and such desertion or abandonment continues until death, the deserting spouse will be barred of all interest in the estate of the decedent by intestate succession, elective share, exempt property, family allowance, and homestead allowance.

Next time, I will get into taxes.


About Chris Guest

I am a trust and estate planning attorney working in the Washington, DC metro area. I offer comprehensive estate planning, trust administration, probate services and general business counseling for accountants, attorneys, business owners, consultants, federal and local government employees, retirees, other business professionals and other individuals.
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5 Responses to The Basics of Virginia Probate Administration…Part VII: Spousal Rights and Election

  1. Pingback: The Basics of Virginia Probate Administration…Part VIII: Taxes | VA Estate Planner

  2. Pingback: The Basics of Virginia Probate Administration…Part IX: Ancillary Probate Administration | VA Estate Planner

  3. Pingback: The Basics of Virginia Probate Administration…Part X: Estate Litigation | VA Estate Planner

  4. karen scroggins says:

    Good Morning.
    I need advise. My dad passed away 5 years ago in Farmville Va. My 2 sisters have been living in the house ever since. They have drained the bank accounts etc….In the will all the property was left to all us girls. They will not sell. It’s a mess. I need some advise. I know nothing about any of this. I just know I need closure.

    • Chris Guest says:

      You should speak with an attorney. You may have rights to assert against the estate and/or your sisters but there are statutory time limits in play that might prevent you from asserting those rights.

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