Elective Shares


“For richer, for poorer.” When two people get married, their vows often contain language indicating that they will love each other no matter what their financial state is. Unfortunately, sometimes one spouse wants to use his or her finances to control or even to punish the other spouse. One way they may attempt to do this is to leave the spouse out of the will altogether.

When this happens, the surviving spouse isn’t doomed to poverty. If someone passes away (the “decedent”) and excludes their spouse, the surviving spouse has six months to claim an elective share of the decedent’s estate (Va Code Section 64.2-308.12).

If a claim for an elective share is made, the surviving spouse is entitled to 1/2 of the decedent’s augmented estate (Va Code Section 64.2-308.3).

For purposes of calculating an elective share, a decedent’s estate includes insurance policies, retirement benefits (exclusive of federal social security benefits), annuities, pension plans, deferred compensation arrangements, and employee benefit plans. All these policies and benefits are included in “estate,” notwithstanding the presence of language contained in any statute otherwise providing that neither the policy/benefit itself nor their proceeds are liable to attachment, garnishment, levy, execution, or other legal process. Basically, if Virginia has decided that an asset is to be counted toward the estate, there is little a decedent can do to prevent that asset from being counted toward the estate. The value of the elective share is further adjusted based upon the duration of the marriage (Va Code Section 64.2-308.4).

The value of the estate used in calculating the elective share is, however, adjusted to reflect the value of certain property – real estate, gift made to other people, gifts from the decedent to the surviving spouse, and the like. The estate’s value is further adjusted to remove the value of any property the decedent inherited and kept as separate property while he or she was still living, as well as other logical reductions in the value of the estate related to the surviving spouse. The details of what is and is not included in these adjustments to the value of the estate can be found in Virginia Code Sections 64.2-308.5 to 64.2-308.9.

The appropriate Circuit Court will then make a determination as to the surviving spouse’s elective share and where its value will be pulled from. Generally, the value of the elective share will be pulled proportionately from other recipients’ shares of the estate. The other recipients then have 30 days to tell the court how they will be making their contribution to the surviving spouse – in property, in cash, or some combination thereof. If they don’t do so voluntarily, the court will enter an order specifying how they should make the contribution (Va Code Section 64.2-308.10).

Up next: What rights do children have who are left out of a decedent’s estate?

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© 2013 - 2019 by Hilary J. Leitch/Leitch Law PLLC.

Disclaimer: The information contained in this website is provided "as-is,"' with no warranties or guarantees. This information should not be considered as actual legal, tax or investment advice and you should always contact a certified accountant, a tax professional, or an attorney before making any financial decisions. While every attempt has been made to provide current and accurate information, neither the author nor the publisher can be held accountable for any errors or omissions. The user is solely liable for any and all reliance, use, or action on this information.