elective share

What Qualifies as the “Elective Share” of a Person’s Marital-Property Estate in Virginia?

Do you know what an “elective share” of an estate plan means? Occasionally, a person passes away without an estate plan, leaving behind a spouse who they either have left out of their will or have left less than the spouse believes they are entitled to, given the nature of their relationship. The reasons this happens are surprisingly numerous—and not least of these reasons is that people are more likely to put off amending their wills than they should be. Sometimes they make a will before marrying and forget to amend it to include their spouse. Sometimes they make their will in a state of pique and omit them intentionally. Whatever the reason, the state of Virginia has decided that it must contend with concepts of fairness, and deal with the situation in a number of ways. One among these is a statutory claim that permits the surviving spouse to receive an  “elective share” of the deceased spouse’s estate.

The elective share is spelled out in the Code of Virginia, but the concept was born deep in the history of English common law. The idea, initially as now, was that a surviving spouse who was not left a large enough portion of the estate of their deceased spouse might fall into poverty. This could further result in their becoming a burden on their community—and therefore on the State. The State wants to avoid burdens on its funds, so the elective share is not completely altruistic. But it does accomplish governmental goals through an apparently altruistic means.

Virginia has decided to make its elective share 50 percent of the marital-property portion of the augmented estate. The marital-property portion is calculated in part by a multiplier based upon the length of the marriage. The longer the marriage, the larger the multiplier. The multiplier starts as low as 3 percent for a single year of marriage, to up to 100 percent for marriages lasting 15 years or longer.

The augmented estate of a deceased spouse, in the language of Virginia Code section 64.2-308.4, includes:

  1. The decedent’s net probate estate;

  2. The decedent’s non-probate transfers to others;

  3. The decedent’s non-probate transfers to the surviving spouse; and

  4. The surviving spouse’s property and non-probate transfers to others.

This is all very simplified, of course. The elective share regime is a complex one so there are many questions and nuance to which this single blog cannot be brought to bear. The easiest way to ensure your property is distributed the way you would like when you pass is to draft a solid will that makes your wishes clear; but you should recognize that the state does not look fondly on attempts to leave a spouse out of your will.

We Can Help You Claim Your Elective Share of a Deceased Spouse’s Estate

If you are wondering about how to plan your property’s disposition in the future, attend one of Promise Law’s free estate planning workshops. These workshops provide a great foundation of information that everyone needs to be able to make good estate planning decisions. Moreover, if you attend a workshop you also get a complimentary one-on-one consultation with one of our attorneys.


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