Executive Summary: Virginia law may give a surviving spouse an elective-share right even when an estate plan provides something different. For deaths on or after January 1, 2017, the calculation uses augmented estate and a marital-property percentage tied to the length of the marriage. Trusts and other non-probate transfers do not automatically avoid these rules.
You signed the documents. You chose your beneficiaries. Your trust says exactly where you want your property to go.
So that settles it, right? Not always.
Marriage gives spouses certain rights that an estate plan cannot simply ignore. In Virginia, a surviving spouse may have the right to claim an elective share after the other spouse dies. That can become a big concern in second marriages, blended families, or any plan that leaves most assets to someone other than a spouse.
It can also surprise people who assume putting assets into a trust keeps those assets outside the calculation.
Here are five things Virginia families should know.
1. The Elective Share Can Override Part of Your Plan
Virginia’s elective share rules for deaths occurring on or after January 1, 2017, are found beginning in Virginia Code §§ 64.2-308.1.
Under § 64.2-308.3, a surviving spouse may claim an amount equal to 50% of the “marital-property portion” of the augmented estate.
That does not mean every surviving spouse automatically receives half of everything.
Virginia first determines the augmented estate and then calculates the marital-property portion. The percentage treated as marital property depends in part on how long the couple was married.
2. How Long You Were Married Can Change the Calculation
Virginia uses a sliding scale.
Under § 64.2-308.4, the marital-property percentage begins at 3% for marriages lasting less than one year. It increases as the marriage gets longer. Once the marriage has lasted 15 years or more, the percentage reaches 100%.
The elective share is then 50% of that marital-property portion.
That makes the length of the marriage especially important for people who marry later in life or enter a second marriage with significant assets already in place.
3. It Is Not Just About What’s in Your Will
This is where estate planning can get tricky.
Virginia calculates the elective share using an augmented estate. Under § 64.2-308.4, that calculation can include the decedent’s net probate estate, certain non-probate transfers, property transferred to the surviving spouse, and certain property belonging to the surviving spouse.
In other words, simply keeping an asset outside probate does not necessarily keep it outside an elective-share calculation.
That is especially important for people using revocable trusts, beneficiary designations, jointly owned property, and other non-probate planning tools.
4. Blended Families Should Pay Close Attention
Suppose you enter a second marriage and want to provide for your spouse while also protecting an inheritance for children from your first marriage.
Those two goals can work together, but the plan needs to account for your spouse’s legal rights.
Leaving everything outright to a surviving spouse could give that person control over where the assets eventually go. Leaving too little to the spouse could create a possible elective-share claim.
There may also be other people affected by that claim. Virginia law contains rules governing which assets are used to satisfy an elective share and when recipients of certain property may have to contribute toward it.
This is why blended-family planning often requires more than deciding percentages on a piece of paper.
5. A Prenuptial Agreement May Be Part of the Conversation
Virginia law allows spouses to address certain rights through marital agreements. For some couples, especially those entering later marriages, a properly prepared prenuptial or marital agreement may work alongside the estate plan.
That does not mean every married couple needs one.
It does mean estate planning and marital planning should not be treated as completely separate subjects when significant assets, children from prior relationships, or remarriage are involved.
Your trust, beneficiary designations, property ownership, and any marital agreement should work together rather than contradict each other.
Build a Plan That Works With Virginia Law
You should be able to decide what you want your estate plan to accomplish. But those decisions need to account for the legal rights that come with marriage.
That becomes especially important when there is a second marriage, children from an earlier relationship, significant separate property, or a plan designed to preserve assets for the next generation.
The Norton Law Firm helps individuals and families in Fredericksburg and throughout Virginia build estate plans around their actual family structure, assets, and goals. If your plan needs to balance the interests of a spouse and other beneficiaries, we can help you work through those decisions before they become someone else’s problem.
Frequently Asked Questions
It is a statutory right that may allow a surviving spouse to claim a portion of the augmented estate rather than simply accepting what the deceased spouse’s estate plan provides.
No. For deaths on or after January 1, 2017, the elective share equals 50% of the marital-property portion of the augmented estate. The marital-property percentage increases based on the length of the marriage.
Not necessarily. Virginia’s augmented-estate rules can include certain non-probate transfers. Moving property into a trust does not automatically remove it from an elective-share calculation.
They can be. Someone may want to provide for a new spouse while preserving assets for children from an earlier relationship. The spouse’s statutory rights need to be considered when creating that plan.
Virginia law permits certain rights at death to be waived through a written contract, agreement, or waiver when the legal requirements are satisfied. Whether that approach fits a particular estate plan should be reviewed with an attorney.
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