Intestate Share for Surviving Spouse in Virginia
If a resident of Virginia passes without a will, the surviving spouse is entitled to the entire estate if there are no descendants. If the deceased spouse has descendants, all of whom are also descendants of the surviving spouse, the spouse inherits the entire probate estate. If the deceased spouse has descendants, at least one of whom is with someone other than the surviving spouse, the surviving spouse is entitled to one-third of the estate.
Virginia Elective Share
If the surviving spouse is not satisfied with the inheritance under the will, the surviving spouse can claim elective share under Virginia law. The percentage the surviving spouse receives is based on whether there are descendants of the deceased spouse. If the decedent is survived by descendants, the surviving spouse is entitled to one-third of the augmented estate. If the decedent is not survived by descendants, the surviving spouse is entitled to one-half of the augmented estate. To determine the amount of the elective share, Virginia uses the concept of an augmented estate. The augmented estate includes probate assets of the decedent, plus assets passing outside the probate estate, such as joint accounts, plus certain transfers by the decedent during his or her lifetime.
Virginia Pretermitted Spouse
If the deceased spouse created a will prior to the marriage, the spouse is considered pretermitted, which means that the surviving spouse is entitled to inherit as if there were no will.
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.
In addition to any other right or allowance, the surviving spouse of a decedent who was domiciled in Virginia is entitled from the estate to value not exceeding $15,000 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects.
Denial of Spousal Rights for Bad Behavior
If the surviving spouse, prior to the death of the deceased 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.
Claiming elective share in Virginia is tricky. The surviving spouse of a decedent who dies domiciled in Virginia may claim an elective share within six months from the later of (i) the time of the admission of the decedent’s will to probate or (ii) the qualification of an administrator on the decedent’s intestate estate. A consultation with a Virginia probate lawyer would be necessary for any surviving spouse of a Virginia decedent who wishes to claim anything beyond that set forth in the decedent’s will.