For persons dying after January 1, 2017, Virginia’s law on the rights of surviving spouses is significantly changed.
When a married person dies and the administration of their estate is governed by Virginia law, the surviving spouse has legal protections that block any effort by the deceased to “cut out” the surviving spouse. Virginia law has long provided for the surviving spouse the right to what is called an “elective share”. The surviving spouse has the legal right to “elect” to receive a specific share of the deceased’s estate despite what the deceased may have put in his or her Last Will and Testament. The method of calculating the surviving spouse’s share was significantly changed starting in 2017.
In a law approved by the Virginia General Assembly in the 2016 session, the method of calculating the elective share was substantially changes.
- The new law removes from consideration whether the deceased left any children or descendants.
- The new law takes into account the length of the marriage, with the elective share amount being increased the longer marriage lasted. The range is from 3% of the “augmented estate” for marriages less than a year, to 100% at year 15 or longer.
- The new law also changed how the augmented estate is calculated – what assets and transfers are taken into account.
With the change to a “floating” or “flexible” calculation of the elective share, surviving spouses and Virginia lawyers need to pay more attention to situations where the surviving spouse is not left the share he or she expected. Married persons can still waive their rights to the elective share and other allowances provided by Virginia law.
The elective share law’s obvious application is to the atypical situation where a spouse in a broken or failing marriage seeks to disinherit his or her spouse. However, an awareness of the changes and details is important for planning in second marriages, drafting of premarital agreements, drafting of separation agreements, and in some Medicaid and similar planning situations.