Until death do us part: Changing rights of surviving spouses in Virginia

May 3rd, 2016 by JBWK

Submitted by Attorney Rebecca S. Aman

Virginia law provides that the surviving spouse of a deceased individual is entitled to a minimum amount of the decedent’s estate.  This minimum is known as the “elective share” and prevents a decedent from disinheriting or impoverishing his or her spouse.  If the decedent does not leave his or her surviving spouse at least the value of the elective share, the surviving spouse can elect to take the portion provided by law.  Since 1990, a surviving spouse has been entitled to: One-third (1/3) of the decedent’s estate if the decedent left surviving children or descendants; or one-half (1/2 or 50%) of the decedent’s estate if the decedent left no surviving children or descendants.  All of that is about to change…

For decedents dying on or after January 1, 2017, the elective share becomes remarkably different:

  1. The new law removes the distinction of whether a decedent left children or descendants. The elective share is set at fifty percent (50%) of the marital property portion of the augmented estate, regardless of whether a decedent left descendants.
  2. The length of the marriage now impacts the amount a surviving spouse is entitled to receive. The surviving spouse is entitled to increasing percentages of the 50% elective share based on the length of the marriage, from 3% for marriages of less than 1 year to 100% for marriages of 15 years or more.  For example, in a marriage of 6 months, the surviving spouse would be entitled to 3% of the 50% elective share or 1.5% of the augmented estate.
  3. The amount of assets in the surviving spouse’s name is now taken into consideration. Under current law, only the decedent’s augmented estate is considered in determining the elective share.  For decedents dying on or after January 1, 2017, the augmented estate will include not only the decedent’s property and non-probate transfers (such as gifts) but also the surviving spouse’s property and non-probate transfers.  This combination reflects a changing theory of the elective share from the support theory (preventing a surviving spouse’s impoverishment) embraced by the present elective share regime, to the partnership theory (that marriage is an economic partnership) embraced by the incoming elective share regime.

The new statute contains other provisions impacting marital rights, including more specifics for determining what assets and transfers are included in the augmented estate, as well as changes to other statutory allowances.  Virginia law provides three additional allowances that a surviving spouse may claim: a family allowance, exempt property allowance, and homestead allowance.  Under current law, the surviving spouse may claim the family allowance and exempt property allowance together with the elective share.  The homestead allowance may only be claimed in lieu of the elective share.  For decedents dying on or after January 1, 2017, the surviving spouse may claim all three allowances, while also making an elective share claim.

The text of the new law may be found at: https://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+CHAP0187   If you would like to talk further with someone about spousal rights in estates or to review your current estate plan, please contact the attorneys at Jones, Blechman, Woltz & Kelly, P.C.

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