Changes to Virginia’s Elective Share Law Imminent

Changes to Virginia’s Elective Share Law Imminent

Understand the changes before they go into effect

Virginia’s elective share law allows a surviving spouse to make a claim on their spouse’s estate if they are not satisfied with what was left to them through the will. The current law allows the surviving spouse to claim one-third of a decedent’s estate if there are also surviving children or descendants. If there are no surviving children or descendants, the surviving spouse’s elective share is one-half of the decedent’s estate. This elective share is based on the decedent’s augmented estate which only factors in the decedent’s assets at the time of death.

The new law allows a surviving spouse to receive up to one-half of the value of marital property in the augmented estate. Determining whether the spouse will receive one-half or a smaller percentage is based on the duration of the marriage. For spouses who are married less than one year, the elective share is 3 percent. This percentage raises with each year of marriage. If the couple is married for five years before the decedent’s death, the elective share is 30 percent.

The marital property portion of the augmented estate includes the following:

  • Decedent’s net probate estate
  • Non-probate transfers made by the decedent to others
  • Non-probate transfers by the decedent to the surviving spouse
  • Non-probate transfers made by the surviving spouse to others
  • Surviving spouse’s property

In addition to the changes regarding the percentage of the estate that the surviving spouse is entitled to through the elective share, he or she can also take advantage of statutory allowances. Under the current law, the surviving spouse can receive a family allowance and exempt property allowance. A homestead allowance is not available under the current law with the elective share. However, with the new law, the surviving spouse can receive the homestead allowance in addition to the other allowances.

Another important change to the law is that a surviving spouse who is incapacitated now has a pathway to make the elective share claim through a conservator or agent, an option not available under the current law. This share must be set aside in a testamentary trust and administered to the surviving spouse. If the surviving spouse does not regain capacity, any remaining portion of the elective share is administered in accordance with the residuary clause of the first spouse’s will upon the surviving spouse’s death.

The new law will be applied to the estates of individuals who die on or after January 1, 2017. The new law has the ability to alter the estates of individuals in significant ways. Rather than a new spouse potentially receiving one-third of the estate, he or she may only be entitled to 3 percent of the estate, which may alleviate concerns for children of the deceased who believe that their parent is being financially exploited. Individuals who have power of attorney or who are conservators can now factor in the elective share to help provide for the ward’s needs. An estate planning lawyer can explain other ways the new law may affect existing estate plans.

If you have questions about Virginia's elective share law or other estate planning matters, contact the Northern Virginia estate planning lawyers at Altman & Associates for reliable guidance, We provide knowledgeable legal counsel and care about your financial future. Schedule a consultation by calling (301) 468-3220 or contact us online.

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