What Are You Entitled to Under the Elective Share?
The answer to this question is going to change for decedents dying on or after January 1, 2017, based on some 2016 revisions to the Virginia Code.
For decedents dying before January 1, 2017.
For decedents dying before January 1, 2017, Virginia Code § 64.2-304 provides that the surviving spouse may claim one-third of the decedent’s “augmented estate” if the decedent left surviving children or descendants, or one-half of the decedent’s augmented estate if the decedent left no surviving children or descendants. The surviving spouse is also entitled to interest at the legal rate specified in Virginia Code § 6.2-301 from the date of the decedent’s death until such time as the surviving spouse receives the elective share.
For these decedents, the augmented estate is defined by Virginia Code § 64.2-305 and includes the decedent’s net probate estate (i.e. the estate passing by the will after payment of funeral expenses, allowances, exemptions, debts, etc.), the decedent’s non-probate transfers to others, transfers the decedent made during his or her lifetime, and the decedent’s probate transfers to the surviving spouse.
For decedents dying on or after January 1, 2017.
For decedents dying on or after January 1, 2017, Virginia Code § 64.2-308.3 provides that the surviving spouse may claim an elective share in an amount “equal to 50 percent of the value of the marital-property portion of the augmented estate” based upon the length of the marriage. This permits surviving spouses to claim up to one-half of the marital property (for longer-term marriages) in the decedent’s augmented estate, regardless of whether the decedent has left any surviving children or descendants.
For these decedents, the augmented estate is defined by Virginia Code § 64.2-308.4 and includes the decedent’s net probate estate, the decedent’s non-probate transfers to others, the decedent’s non-probate transfers to the surviving spouse, and the surviving spouse’s property and non-probate transfers to others.
Under Virginia Code § 64.2-308.3, the surviving spouse’s claim to the marital property in the decedent’s augmented estate will be calculated based on the length of the marriage. This is done according to a sliding scale which is laid out in a chart now found in Virginia Code § 64.2-308.4. Under the scale, a surviving spouse is entitled to 3% of the marital share (or 1.5% of the augmented estate), for marriages less than one year. That percentage then rises every year the parties were married; to 6% of the marital share (or 3% of the augmented estate) for marriages that lasted between 1-2 years, 12% of the marital share (or 6% of the augmented estate) for marriages that lasted between 2-3 years, and so on. For marriages of 15 years or more, the percentage maxes out, at 100% of the marital share (or 50% of the augmented estate).
What Allowances Can You Claim From Your Elective Share?
Again, the answer to this question is going to change for decedents dying on or after January 1, 2017.
For decedents dying before January 1, 2017, the surviving spouse may claim the family allowance and exempt property allowance, but will not be permitted to claim the homestead allowance. If the surviving spouse wishes to claim the homestead allowance, this can only be done so in lieu of claiming the elective share.
For decedents dying on or after January 1, 2017, the surviving spouse will be able to claim the homestead allowance in addition to the family allowance and exempt property allowance.
Can You and Your Spouse Legally Waive Your Claims to the Elective Share?
Yes. Notwithstanding the above, spouses may agree to waive the right to an elective share in either pre-nuptial agreements or in separation agreements.
Are There Any Legal Defenses to a Surviving Spouse’s Claim to the Elective Share?
Yes. If the surviving spouse willfully deserted or abandoned his or her spouse, and such desertion or abandonment continues until the death of the decedent, the executor of the will or other surviving descendants may raise a legal defense to a surviving spouse’s claim to the elective share.
What About Divorce?
A final decree of divorce will completely cut off a spouse’s right to an elective share. However, merely filing for divorce does not. Meaning, where a party dies while a divorce is pending, their spouse will be entitled to claim their elective share (unless the spouse had waived their right, or the defense stated above applies).