Virginia Elective Share and Homestead Allowance

In Virginia, estate planning and inheritance laws can seem complicated, especially for surviving spouses and family members. Two key provisions that protect the rights of surviving spouses and children in Virginia are the elective share and homestead allowance. Both serve as mechanisms to ensure that certain family members are not left destitute, regardless of the contents of a deceased person’s will.

 

Let’s break down what these provisions are, how they work, and what they mean for Virginia residents.

 

What is the Elective Share?

 

The elective share is a legal right in Virginia that allows a surviving spouse to claim a portion of the deceased spouse’s estate, regardless of the deceased person’s will. Essentially, it provides a safety net for the surviving spouse who might otherwise be left with little or nothing if the deceased spouse’s will did not provide adequately for them.

 

How the Elective Share Works

 

In Virginia, the surviving spouse is entitled to claim an “elective share-amount equal to 50 percent of the value of the marital-property portion of the augmented estate.”[1]

 

For starters we would need to define the “augmented estate” of the deceased spouse. The definition of the augmented estate is set forth in Virginia Code § 64.2-308.4(A). Essentially it includes:

 

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.

 

Once we identify what the augmented estate includes – we would then identify the “marital portion” of the augmented estate. Calculation of the marital portion is set forth in Virginia Code § 64.2-308.4(B). To make this calculation, we would take the total value of the augmented estate and apply a percentage as follows:

 

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%

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%

 

When we apply the appropriate percentage to the augmented estate, we get the “marital-property portion of the augmented estate.” The surviving spouse is allowed to claim 50% of this marital property portion of the augmented estate – even if the deceased spouse’s will gives the surviving spouse nothing.

 

Importantly, the surviving spouse’s elective share is not automatically given. The spouse must actively elect to take the share within six months of the decedent’s death. If they fail to make the election within this time frame, they will not be entitled to claim it.

 

When Might a Spouse Elect to Take the Elective Share?

 

There are several reasons a surviving spouse might choose to claim the elective share instead of accepting what’s left to them in the decedent’s will. These include:

 

• The deceased spouse left them with minimal assets, and they need more for support.

 

• The surviving spouse believes the will was not reflective of the decedent’s true intentions.

 

• The surviving spouse may feel that they were unjustly omitted or left with a smaller portion than they feel entitled to.

 

However, the elective share might not be the best option in every case, as it could involve complex legal proceedings and may reduce the share the spouse can receive from other assets or provisions made outside the will.

 

What is the Homestead Allowance?

 

The homestead allowance is a separate provision that provides additional protection to surviving spouses and children. This allowance is designed to ensure that the family has a basic amount of support, even if the decedent’s estate is otherwise small or insufficient to meet the needs of the survivors.

 

How the Homestead Allowance Works

 

In Virginia, the homestead allowance grants a surviving spouse and any minor children of the decedent $20,000.[2] This amount is intended to help the survivors with their immediate living expenses and is not dependent on the provisions of the will.

The homestead allowance is typically paid before any other debts or distributions from the estate are made. So, regardless of what the will says, the surviving spouse and children are entitled to this amount. Importantly, the homestead allowance is available in addition to any other share the spouse or children may be entitled to, such as the elective share or specific bequests from the will.

 

Who Qualifies for the Homestead Allowance?

 

• Surviving Spouse: If the deceased person was married, the surviving spouse is entitled to the homestead allowance.

 

• Minor Children: If the decedent had minor children, they too are entitled to a share of the homestead allowance. The amount is divided equally among the children.

 

Unlike the elective share, the homestead allowance is generally available to all surviving spouses, regardless of whether they were provided for in the will. This is particularly important for individuals who may not have been left anything by their deceased spouse, but who still have a right to basic support.

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Conclusion

 

Understanding your rights as a surviving spouse or family member in Virginia is crucial for both estate planning and navigating the legal landscape after a loved one’s death. The elective share and homestead allowance are essential safeguards that ensure family members are not left without basic support, even if the will does not provide adequately for them.

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If you’re involved in an estate planning process or have concerns about inheritance rights in Virginia, it’s always a good idea to consult with a qualified estate attorney. They can guide you through these provisions and help ensure that your family is protected according to the law.

 

[1] Virginia Code § 64.2-308.3.

[2] Virginia Code § 64.2-311.