Rights of Surviving Spouses in Virginia Undergo Major Change

Common question: Can my spouse disinherit me or leave me out of their will?

If you reside in Virginia, the answer is no. There are laws in place that protect surviving spouses from being disinherited and left with absolutely nothing after a spouse passes away. The legislature passed an “elective share” statute. This law allows a surviving spouse to claim a portion of a decedent’s estate if:

• (i) the decedent died without a will;
• (ii) the spouse is omitted from the will, or
• (iii) the decedent explicitly disinherited the surviving spouse in their will.

A spouse is eligible to exercise their right to an elective share even if they were separated from the decedent and a divorce was pending. If the couple was still legally married at the time of death, the surviving spouse is eligible to claim an elective share.

Prior Law

For over 25 years, the law in Virginia allowed a surviving spouse to elect to claim (i) one-third of the decedent’s estate if the decedent was also survived by children or other descendants or (ii) half of the decedent’s estate if the decedent was not survived by children or other descendants.  For example, if a decedent’s estate was valued at $1 million, a surviving spouse would be eligible to claim either roughly $333,000 if the decedent’s estate if they were also survived by a child or other descendants, or $500,000 of the decedent’s estate if there are not children or other descendants.

Big Changes to Elective Share Statute

In 2017 and going forward, what a surviving spouse is eligible to receive under the elective share statute will be quite different from years past. For example, Virginia Code § 64.2-308.3 was amended to remove the distinction of whether a decedent was survived by children or other descendants.

The elective share a surviving spouse can claim is now set at 50 percent of the marital property portion of a decedent’s augmented estate, regardless of whether the decedent left other descendants besides the surviving spouse. This means that a surviving spouse could elect to receive 50 percent of a decedent’s estate, even if the decedent is survived by multiple children and other descendants.

New Factors Influence Elective Share Eligibility

The amended elective share statute, specifically Virginia Code § 64.2-308.4, now incorporates the length of the marriage as an influencing factor in the percentage a surviving spouse can elect to receive. The surviving spouse is entitled to increasing percentages from the fifty percent elective share based on the amount of time they were married to the decedent.

For example, if you were married for less than one year, you would be eligible for 3 percent of the 50 percent elective share (which equates to 1.5 percent of augmented estate). If you were married for five years, you are eligible to receive 30 percent of the overall 50 percent elective share. If you were married for ten years, you are eligible to receive 60 percent of the overall 50 percent elective share. If you were married for 15 years or longer, you are eligible to receive the full 50 percent of the elective share of the decedent’s estate.

Estate Assets Now Part of the Equation

In addition to changing the percentage of an estate that can be claimed by a surviving spouse and factoring in the length of the marriage, the amount of estate’s assets is also taken into consideration.

In 2017, the decedent’s augmented estate will include not only the decedent’s property and non-probate transfers (e.g., gifts) but also the surviving spouse’s property and non-probate transfers.  This is a major shift in the policy rationale behind elective shares. Before 2017, elective share principles were largely based on a “support” theory where the Virginia legislature wanted to ensure that a surviving spouse would not be left destitute and in poverty when a spouse passes away. Considering the vast majority of families now have two parents working full-time, it seems appropriate to reform elective share given new societal dynamics. The rationale behind the updated 2017 elective share laws is a “partnership” theory that views marriage as an economic partnership rather than one spouse being wholly dependent on another spouse for survival.

Other Major Reforms to Be Aware Of

The amended elective share statute contains other important provisions that impact the rights of a surviving spouse.  For example, there are three “allowances” that a surviving spouse can claim after the death of a spouse:

• Family allowance
• Exempt property allowance
• Homestead allowance.

The new law allows surviving spouses to claim all three allowances while maintaining eligibility to make an elective share claim. The old law only allowed a surviving spouse to claim the family allowance and exempt property allowance together with the elective share claim. A surviving spouse could only claim the homestead allowance if the surviving spouse did not opt for the elective share.

What This Means For You

If you and your spouse have estate plans, schedule a time to speak with your estate planning lawyer to discuss the ramifications of the amended elective share statute. If you do not have a plan, but are thinking about the future and the level of protection you have if a sudden loss occurs (or your spouse is currently struggling with health difficulties), again, the best strategy to schedule a time to speak with an experienced estate planning attorney in your area.  If you live in or around the Northern Virginia area, InSight Law regularly hosts free informational events focused on estate planning. Learn more about our firm events here.