Allowance and Elections in Estate Administration

Elective Share and the Augmented Estate: What to do if a Spouse is Cut Out of Their Deceased Spouse’s Estate in Virginia

The purpose of the elective share is to prevent someone from disinheriting their spouse through estate planning. The elective share in Virginia only applies to a surviving spouse – if the couple divorced prior to the decedent’s passing, the surviving spouse cannot claim an elective share.

The surviving spouse must make the claim for an elective share within either six (6) months of the recording of the decedent’s will or qualification of an Executor. They then have six (6) months from the date they make their claim to file a Complaint to determine what their elective share is. Even if the surviving spouse is cut out of the decedent’s estate plan, they are required to be given notice of the recording of the will or qualification of an Executor.

Pursuant to Virginia Code § 64.2-308.3, a surviving spouse making an elective share claim is entitled to 50 percent of the value of the marital property portion of the augmented estate. It is important to note that the augmented estate includes all probate assets, as well as any other assets that may have passed to beneficiaries through non-probate transfers, such as Transfer-on-Death of Payable-on-Death beneficiary designations. Virginia Code § 64.2-308.4 provides a full breakdown of the composition of the augmented estate, and determines the value of the marital-property portion by multiplying the total value of the augmented estate by the following percentages based on how long the parties were married:

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%
11 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%

Other allowances available to a surviving spouse are not charged against, but are in addition to, their elective share amount. The other allowances will be discussed in the following paragraphs.

Family Allowance

One allowance that a surviving spouse may claim is the Family Allowance. When making this claim, the surviving spouse is entitled to up to $24,000, and the claim has priority over all other claims of the estate, including taxes and debts. The Family Allowance may be paid as a lump sum payment or in monthly payments of $2,000. If there is no surviving spouse, the claim for the Family Allowance can be made by the person having care and custody of the surviving minor children, if any. The claim must be made within twelve (12) months of the date of the decedent’s death. The amount received for a Family Allowance claim is in addition to any other benefit received from the estate, including any share of the estate passing by will, intestate succession, or elective share.

Exempt Property

Another allowance that a surviving spouse may claim is the Exempt Property Allowance. A claim for the Exempt Property Allowance entitles the surviving spouse to $20,000 of tangible personal property, and has priority over all other claims of the estate other than the Family Allowance. If the value of the tangible personal property included in this claim is less than $20,000, the person making the claim is entitled to other assets of the estate, if any, to the extent necessary to make up the $20,000 value. The claim for Exempt Property Allowance must be made within twelve (12) months of the decedent’s death.

Homestead Allowance

The Homestead Allowance is the last claim available to a surviving spouse. The Homestead Allowance entitles the surviving spouse to $20,000 of the estate. However, if the surviving spouse claims and receives an elective share of the estate, the surviving spouse shall not have the benefit of the Homestead Allowance. Additionally, it is important to note that unlike the other claims available to a surviving spouse, the Homestead Allowance is in lieu of any share passing to the surviving spouse by way of the decedent’s will or intestate succession. Therefore, if the person making the claim for the Homestead Allowance is already receiving assets from the estate having a value over $20,000, they should avoid making this claim; they will receive the $20,000 they are entitled to for the claim of Homestead Allowance, but will be barred from receiving the other assets they were to receive by way of the will or intestate succession. The claim for Homestead Allowance must be made within twelve (12) months of the decedent’s death.

If you or a loved one are dealing with a spouse “cut out” of their deceased spouse’s estate, call or message our Virginia law firm to discuss your elective share and other claims in a comprehensive estate preparation meeting at (804) 325-1245, today.

Special thanks to Owen Togna for editorial assistance in drafting this article.