Family, Exempt Property, and Homestead Allowances
Last month, we discussed the right of an excluded spouse to claim an elective share of their deceased spouse’s estate. This month, we’re looking at the three rights of a surviving spouse when there are also surviving minor children: The Family Allowance, the Exempt Property Allowance, and the Homestead Allowance.
These three rights have priority over creditors and other beneficiaries of the estate. This VBA article puts it well: “The Family Allowance has priority over all claims against the estate. The right to Exempt Property has priority over all claims against the estate except the Family Allowance. The Homestead Allowance has priority over all claims against the estate, except the Family allowance and the right to Exempt Property.” All Allowances elections must be made within one year of the decedent’s death.
The Family Allowance is a sum paid from the estate for the support of the surviving spouse and minor children during the period of estate administration, up to $24,000 (either in a lump sum or in installments). The Family Allowance may only be paid for one year if the estate is insolvent. If there is no surviving spouse, the children may elect the Family Allowance.
The Exempt Property Allowance entitles the surviving spouse (or the surviving minor children, if there is no surviving spouse) of the decedent to select up to $20,000 worth of household furniture, automobiles, furnishings, appliances, and personal effects from the estate. The Exempt Property Allowance is in addition to the Family Allowance and is also in addition to any share given to the spouse or minor children by will or by intestate succession or by the elective share.
The Homestead Allowance entitles the surviving spouse (or the surviving minor children, if there is no surviving spouse) to an allowance of $20,000 from the estate. The Homestead Allowance is in addition to the Family Allowance and the Exempt Property Allowance. The Homestead Allowance replaces any share given to the surviving spouse or minor children by will or intestate succession unless that share is less than $20,000. If the share is under $20,000, the surviving spouse or minor children may claim as much of the Homestead Allowance as needed to bring the total amount to $20,000. For decedents whose date of death is after 2016, the surviving spouse may claim both their elective share and the Homestead Allowance.
I’m making a will. How do I prevent my spouse from being able to claim an elective share or the three Allowances?
Some situations, after much careful thought and open discussion, do call for a legal prohibition on an elective share or the Allowances. The only way a person can prevent his or her spouse from making these claims on his or her estate is to have the spouse waive their right to claim any of these during the person’s lifetime by a signed agreement that meets the requirements of Virginia Code Section 64.2-314. We colloquially referred to these as prenuptial agreements (“prenups”) or marital agreements. These can be tricky to draft correctly, and both parties should have their own attorney.
