Full question:
My sister's husband passed recently. One of her colleagues at work who recently lost her husband told her that "there are some calculations to be done" to see what share of her husband's estate she is supposed to get in Virginia. What did she mean by that?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: Virginia
Answer:
In Virginia, the elective share of the spouse depends on whether the decedent died with or without a Will. If the spouse died without a Will and had surviving issues, then the surviving spouse may elect to take one-third of the “augmented estate”. If the deceased left no issue surviving, then the spouse may elect to take 1/2 of the “augmented estate”.Augmented estate means the property owned by both a deceased person and the surviving spouse, plus any property the deceased spouse gave away shortly before their death. Virginian law also has certain set percentages that is used to calculate the marital-property portion of the augmented estate.
For clarity, given below are the relevant legal provision for reference:
§ 64.2-308.3. Elective share amount; effect of election on statutory benefits; non-domiciliary
A. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this article, to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.
B. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share amount.
C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.
Va. Code Ann.§ 64.2-308.4.
A. Subject to § 64.2-308.9, the value of the augmented estate, to the extent provided in §§ 64.2-308.5, 64.2-308.6, 64.2-308.7, and 64.2-308.8, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute:
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.
B. The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection A multiplied by the following percentage:
If the decedent and the spouse were married to each other: The percentage is:
Less than 1 year 3%
1 year but less than 2 years 6%
2 years but less than 3 years 12%
3 years but less than 4 years 18%
4 years but less than 5 years 24%
5 years but less than 6 years 30%
6 years but less than 7 years 36%
7 years but less than 8 years 42%
8 years but less than 9 years 48%
9 years but less than 10 years 54%
10 years but less than 11 years 60%
1 years but less than 12 years 68%
12 years but less than 13 years 76%
13 years but less than 14 years 84%
14 years but less than 15 years 92%
15 years or more 100%
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
