What is the Virginia law on wife’s right to claim elective share in husband’s estate?

Full question:

My husband went on a road trip with his friend. Unfortunately, my husband’s car collided with a truck and he died in that accident. His father said he made a will and I am unsure whether he mentioned anything about my share of property in that will. What is the Virginia law on wife’s right to claim share in husband’s estate?

• Category: Wills and Estates
• Subcategory: Elective Share of Estate
• Date: 04/07/2025
• State: Virginia

Answer:

In Virginia, the surviving spouse may claim elective share regardless of whether there is any provision made for the surviving spouse in the descendant’s will or there is no will left behind. The surviving spouse is required to claim elective share within six months from the time of the admission of the descendant’s will or qualification of the administrator on the decedent’s estate where the descendant died without a will.
The relevant statutory provisions in this regard are stated below:
Va. Code Ann. § 64.2-302 
When and how elective share may be claimed by surviving spouse
   A. A surviving spouse may claim an elective share regardless of whether (i) any provision for the surviving spouse is made in the decedent's will or (ii) the decedent dies intestate.
B. The surviving spouse of a decedent who dies domiciled in the Commonwealth may claim an elective share in the decedent's augmented estate within six months from the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate. The claim to an elective share shall be made either in person before the court having jurisdiction over administration of the decedent's estate, or by a writing recorded in the court or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55-106 et seq.) of Title 55.
C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside of the Commonwealth to take an elective share based upon the value of property in the Commonwealth is governed by the law of the decedent's domicile at death.
Va. Code Ann. § 64.2-304 
Rights upon claiming an elective share
   If a claim for an elective share is made, the surviving spouse is entitled to (i) one-third of the decedent's augmented estate if the decedent left surviving children or their descendants or (ii) one-half of the decedent's augmented estate if the decedent left no surviving children or their descendants. The surviving spouse is entitled to interest at the legal rate specified in § 6.2-301 from the date of the decedent's death to the date of satisfaction of the elective share.