Family Allowance

Exempt Property

Homestead Exemption

Elective Share

Augmented Estate

Omitted Spouse

Family Residence

Statutory Bar to Estate Rights

Virginia law provides that when a person living in Virginia dies, the surviving spouse and minor children whom the decedent was obligated to support, are entitled to a reasonable allowance (referred to as "family allowance") in money from the estate for their support during administration of the estate.

The family allowance may be paid by the executor or administrator in a lump sum, in one or more installments, or in periodic payments. The personal representative may determine the family allowance in a lump sum not exceeding $18,000, or periodic payments not exceeding $1,500 per month for one year. The family allowance has priority over all other claims against the estate.

The family allowance is payable to the surviving spouse for the use of the surviving spouse and minor children, or if the surviving spouse subsequently dies, it can be paid to the person who has care and custody of the minor children. If the minor children are not living with the surviving spouse, the family allowance may be paid partially to the spouse and partially to the benefit of the minor children. If there are no minor children, the allowance is payable to the spouse.

The family allowance is in addition to any benefit or share passing to the surviving spouse or minor children by will of the decedent, by intestate succession, or by way of elective share (discussed later in this chapter) of the surviving spouse.

The family allowance (exempt property and homestead exemption, both discussed later in this chapter) must be claimed within one year of the decedent's death. The claim can be made in person in the court having jurisdiction over administration of the decedent's estate, or by filing with such court a properly acknowledged claim.

A claim for family allowance in excess of the amount state above requires a petition to the court. The family allowance may not continue for more than 1 year if the estate is insolvent.

The personal representative of the estate, or any interested party not satisfied with the actions of the personal representative regarding the family allowance (or the exempt property or homestead exemption) may petition to the court for appropriate relief.

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