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Spousal & Family Rights
Elective Share

Virginia Estate Law - Spousal & Family Rights

Family Allowance
Exempt Property
Homestead Exemption
Elective Share
Augmented Estate
Omitted Spouse
Family Residence
Statutory Bar to Estate Rights

A surviving spouse of a decedent domiciled in Virginia who died without a will is entitled to a portion of the estate.

A Virginia decedent cannot by will, or by other actions (which are not consented to by their spouse), completely exclude their spouse from taking a portion of their estate.

To protect a surviving spouse, Virginia law provides that a surviving spouse may, within 6 months from date of probate of the will or the qualification of an administrator on the intestate estate, claim an elective share in the spouse's augmented estate.

The claim to an elective share shall be made either in person before the court having jurisdiction over administration of the decedent's estate, or by writing properly recorded in such court, or the clerk's office of the court.

If there is a pending suit to resolve uncertainty as to the spouses share under a will or the composition and value of property of the augmented estate (discussed in the next section), the court on petition of the surviving spouse may enter an order extending the time for filing the elective share, but not longer then 90 days after entry of a final order in the pending court case, or entry of an order on any appeal of that order.

The right, if any, of the surviving spouse of a decedent who dies domiciled outside Virginia to take an elective share of the decedent's property located in Virginia is determined based on the law of the decedent's domicile at death.

If a claim for an elective share is made, the surviving spouse is entitled to receive one-third of the decedent's augmented estate, if the decedent is survived by children. If the decedent does not have any children who survive him or her, the surviving spouse is entitled to one-half of the augmented estate. The surviving spouse is also entitled to interest at the rate provided by law from the date of death of the decedent, until the surviving spouse receives the elective share.

The determination of whether it is in the best interest for a surviving spouse to make an elective share, and the handling of such a claim by a personal representative requires careful analysis of all the assets and circumstances.

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