Kara Sears
Virginia law makes it virtually impossible to disinherit a surviving spouse. Even if you purposely leave your husband out of your will, he can generally go to court to claim up to half of your estate. The exact amount your spouse can claim depends on several factors, including the length of your marriage and whether you have children together. However, he will receive one-third to one-half of your estate as long as he files his claim within six months of the date of your death. This is called an elective share and is calculated based on the length of the marriage. For marriages of 15 years or more, the percentage maxes out at 100% of the marital share (or 50% of the augmented estate). For marriages of less than one year, a surviving spouse is entitled to 3% of the marital share (or 1.5% of the augmented estate).
| Characteristics | Values |
|---|---|
| Can a spouse be disinherited? | No, Virginia law protects surviving spouses from being disinherited. |
| What can a surviving spouse claim? | An "elective share" of the decedent's augmented estate. |
| What is included in the "augmented estate"? | The decedent's net probate estate, the decedent's non-probate transfers to others, the decedent's non-probate transfers to the surviving spouse, and the surviving spouse's property and non-probate transfers to others. |
| How much can a surviving spouse claim? | Between 1.5% and 50% of the augmented estate, depending on the length of the marriage. |
| When can a surviving spouse claim their share? | Within six months from the later of the time the decedent's will is admitted to probate or from the time an administrator is qualified in an intestate estate. |
| Are there any exceptions to the rule? | Yes, if there is a valid prenuptial agreement in place and the spouse fails to challenge their disinheritance within the legally allowed timeframe. |
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What You'll Learn
Surviving spouses' rights to inheritance
In Virginia, a spouse cannot be disinherited. The state's law protects surviving spouses from being disinherited by allowing them to claim an "elective share" of the decedent's estate. This is applicable if the decedent died without a will, if the spouse is omitted from the will, or if the decedent explicitly disinherited the surviving spouse in the will.
The "elective share" is calculated based on the length of the marriage. Surviving spouses are entitled to 3% of the marital share (or 1.5% of the augmented estate) for marriages lasting less than a year. This percentage increases with each year of marriage, and for marriages of 15 years or more, the surviving spouse is entitled to 100% of the marital share (or 50% of the augmented estate). The augmented estate includes everything owned by either spouse on the date of death, including assets that became available due to the decedent's death, such as life insurance policies.
Additionally, surviving spouses in Virginia have the right to receive a "reasonable allowance" from the estate during the period of the estate's administration, known as the "Family Allowance." This can be paid in monthly installments of up to $2,000 for one year or a lump sum of up to $24,000. They are also entitled to up to $20,000 worth of the spouse's tangible personal property, including furniture, vehicles, and personal items, known as the "Exempt Property Allowance."
If the decedent dies without a will in Virginia, their assets will be distributed according to the state's intestate succession laws. The surviving spouse's inheritance in this case depends on whether there are any living descendants, such as children, grandchildren, or great-grandchildren. If there are no descendants, or if all descendants are also descendants of the surviving spouse, then the spouse inherits all of the intestate property. However, if there is at least one descendant who is not the surviving spouse's descendant, the spouse inherits only one-third of the intestate property.
It is important to note that the laws and regulations regarding inheritance and estates may be complex and subject to change. This information provides a general overview, and it is always advisable to seek legal advice for specific situations.
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Marriage length and its impact on inheritance
In Virginia, a spouse cannot be disinherited. The surviving spouse is entitled to a share of the decedent's estate, regardless of whether the decedent has a will, the spouse is omitted from the will, or the decedent explicitly disinherited the surviving spouse in the will. This also applies if the couple is separated or pending divorce, until the divorce is finalised.
The share of the decedent's estate that the surviving spouse is entitled to depends on the length of the marriage. For marriages of less than one year, the surviving spouse is entitled to 3% of the marital share (or 1.5% of the augmented estate). This percentage increases with each year of marriage, reaching 100% of the marital share (or 50% of the augmented estate) for marriages of 15 years or more.
The augmented estate includes the decedent's entire estate passing by will or intestate succession, real and personal, after the payment of allowances, exemptions, funeral expenses, charges of administration, and debts.
For decedents dying on or after January 1, 2017, the surviving spouse may claim an elective share of 50% of the value of the marital-property portion of the augmented estate, regardless of whether the decedent has surviving children or descendants.
If a person dies without a will in Virginia, their assets will go to their closest relatives under state "intestate succession" laws. If they have no family, their property will go to the state, although this rarely happens as the laws are designed to get the property to anyone remotely related to the deceased.
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Intestate succession laws in Virginia
In Virginia, if someone dies without a will, the surviving spouse is generally entitled to a significant portion of their estate. If the deceased has no children or descendants, the entire estate goes to the surviving spouse. However, if the deceased has children or descendants who are not also the children or descendants of the surviving spouse, the estate is divided, with two-thirds going to the children or their descendants and one-third to the spouse. This distribution also applies if the couple is separated but not yet divorced.
The share of the estate that a surviving spouse receives can also depend on the length of the marriage. For marriages of less than one year, the surviving spouse is entitled to a smaller percentage of the estate, which increases gradually for each year the couple was married. For marriages of 15 years or more, the surviving spouse is typically entitled to up to 50% of the estate.
If there is no surviving spouse, the estate passes to the deceased's children and their descendants. If there are no children or descendants, the estate goes to the deceased's parents or the surviving parent. If there are no surviving parents, the estate passes to the siblings of the deceased and their descendants. Half-relatives, such as half-siblings, inherit only half as much as they would if they were "whole" relatives.
In cases where the deceased has no will and no living close relatives, the estate may be transferred to more distant relatives, such as grandparents or cousins. If there are no surviving heirs at all, the real estate is subject to escheat, meaning it reverts to the Commonwealth of Virginia.
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Homestead, exempt property, and family allowances
In Virginia, the right of election allows the surviving spouse of a decedent who was domiciled in the state to claim an elective share of the decedent's augmented estate. This elective share is equal to 50% of the value of the marital property portion of the augmented estate, which includes the decedent's net probate estate, non-probate transfers to others, and non-probate transfers to the surviving spouse. The surviving spouse's claim is calculated based on the length of the marriage, with a maximum of 100% of the marital share for marriages of 15 years or more.
Now, let's focus on the Homestead, Exempt Property, and Family Allowances:
Homestead Allowance
The Homestead Allowance entitles the surviving spouse or minor children of the decedent to an allowance of $20,000 from the estate. This allowance is in addition to the Family and Exempt Property Allowances and has priority over all claims against the estate, except for the Family Allowance and the right to Exempt Property. 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. In such cases, they can claim the allowance to bring the total amount to $20,000.
Exempt Property Allowance
The Exempt Property Allowance allows the surviving spouse or minor children to select up to $20,000 worth of household furniture, automobiles, furnishings, appliances, and personal effects from the estate. This allowance is in addition to the Family Allowance and any share given to the spouse or minor children by will, intestate succession, or the elective share.
Family Allowance
The Family Allowance is a sum of up to $24,000 paid from the estate for the support of the surviving spouse and minor children during the period of estate administration. It has priority over all claims against the estate, except for the right to Exempt Property.
It is important to note that these allowances must be elected within one year of the decedent's death. Additionally, for decedents dying before January 1, 2017, the surviving spouse may claim the family and exempt property allowances but not the homestead allowance. From 2017 onwards, the surviving spouse may claim the homestead allowance in addition to their elective share.
To prevent a spouse from claiming an elective share or the three allowances, a signed agreement, such as a prenuptial agreement, is required during the person's lifetime, meeting the requirements of Virginia Code Section 64.2-314.
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Prenuptial agreements and their impact on inheritance
In Virginia, the surviving spouse cannot be disinherited by law. The surviving spouse is allowed to claim an "elective share" of the decedent's estate, even if the decedent has explicitly disinherited the surviving spouse in the will. This right to an elective share continues even when the couple is separated or a divorce is pending.
The Virginia Premarital Agreement Act, first adopted in 1985, allows parties to enter into prenuptial agreements. A prenuptial agreement is a legal contract entered into by two people intending to marry before the marriage, outlining what would happen to all the assets and liabilities from the marriage. It allows a couple to contemplate the division of assets prior to the marriage and consider these issues before a divorce.
Prenuptial agreements can be used to determine the disposition of property, each party's right to buy, sell, or lease property, spousal support, the creation of a will or trust, and how to deal with life insurance policies in the event of a divorce. They can also cover business interests, income, retirement accounts, bank accounts, and investments. However, custody and visitation are generally not included in prenuptial agreements as they are modifiable based on material changes.
Prenuptial agreements can be beneficial for couples by simplifying and reducing the costs of a potential divorce and laying the foundation for fairness in the dissolution of a marriage. They can also protect the premarital assets of one or both parties. However, it is important to note that prenuptial agreements may result in an uneven bargaining power between the spouses, especially when one party has significantly more resources and advisors than the other.
In conclusion, while prenuptial agreements can offer certain advantages, it is essential to carefully consider their potential impact on inheritance and seek legal advice to ensure informed consent and accurate disclosures.
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Frequently asked questions
No, Virginia law makes it virtually impossible to disinherit a surviving spouse. Your husband can go to court to claim up to half of your estate even if you purposely leave him out of your will.
The amount your husband can claim depends on several factors, including the length of your marriage and whether you have children together. The longer your marriage, the higher the percentage of your estate he can claim.
If you die without a will in Virginia, your assets will go to your closest relatives under state "intestate succession" laws. However, your husband can still claim an elective share of your estate.
An elective share is a portion of the deceased person's estate that the surviving spouse is entitled to claim. The amount of the elective share depends on the length of the marriage and the value of the marital property portion of the augmented estate.
The augmented estate includes everything that was owned by either spouse on the date of death, including any assets that became available due to the decedent's death, such as life insurance policies.
