How elective share can be claimed by a surviving spouse in Virginia?

Full question:

My sister is a widow and has three kids. Her husband died due to a stroke. However, he always wanted my sister to look after his business and property if anything happens to him. He made a will and how can my sister claim under the law prevailing in Virginia?

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

Answer:

In Virginia, a surviving spouse may claim an elective share regardless of whether any provision for the surviving spouse is made in the decedent's will or the decedent dies intestate. If a claim for an elective share is made, the surviving spouse is entitled to one-third of the decedent's augmented estate if the decedent left surviving children or their descendants or one-half of the decedent's augmented estate if the decedent left no surviving children or their descendants.
Relevant statutes in this regard are given 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.
Va. Code Ann. § 64.2-308.10 
Sources from which elective share payable
   A. In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's non-probate transfers to others:
   1. The value of property excluded from the augmented estate under subsection A of § 64.2-308.9, which passes or has passed to the surviving spouse;
   2. Amounts included in the augmented estate under § 64.2-308.5 that pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 64.2-308.7; and
   3. The marital property portion of amounts included in the augmented estate under § 64.2-308.8.
B. The marital property portion under subdivision A 3 is computed by multiplying the value of the amounts included in the augmented estate under § 64.2-308.8 by the percentage of the augmented estate set forth in the schedule in subsection B of § 64.2-308.4 appropriate to the length of time the spouse and the decedent were married to each other.
C. If, after the application of subsection A, the elective share amount is not fully satisfied, amounts included in the decedent's net probate estate, other than assets passing to the surviving spouse by testate or intestate succession, and in the decedent's non-probate transfers to others under subdivisions 1, 2, and 3 b of § 64.2-308.6 are applied first to satisfy the unsatisfied balance of the elective share amount. The decedent's net probate estate and that portion of the decedent's non-probate transfers to others are so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the decedent's net probate estate and of that portion of the decedent's non-probate transfers to others in proportion to the value of their interests therein.
D. If, after the application of subsections A and C, the elective share amount is not fully satisfied, the remaining portion of the decedent's non-probate transfers to others is so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the remaining portion of the decedent's non-probate transfers to others in proportion to the value of their interests therein.
E. The unsatisfied balance of the elective share amount as determined under subsection C or D is treated as a general pecuniary bequest.
In Virginia, the surviving spouse may claim one-third of the decedent's estate if there are any surviving children or their descendants. If there are no surviving children then the surviving spouse may claim one-half of the decedent’s estate. The relevant statutory provision in this regard is stated below.

Va. Code Ann. § 64.2-304 reads:
 

“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.”

In the given instance, as your sister’s husband has surviving children, your sister may claim one-third of her deceased husband’s estate.