f
Follow us

Virginia Elective Share: Protecting Your Rights as a Surviving Spouse

Virginia Elective Share: Protecting Your Rights as a Surviving Spouse

Grief often collides with bills, paperwork, and questions about what you are entitled to receive. If your spouse’s will leaves you little, or leaves you out entirely, the law in Virginia gives you a safety net.

At Commonwealth Life and Legacy Counsel, we focus on helping families plan for the future and handle estates with care. In this article, we explain the Virginia elective share and how it protects a spouse who was disinherited or provided less than the law allows.

What is the Elective Share in Virginia?

The elective share is the right of a surviving spouse to claim a portion of the deceased spouse’s estate, even if the will says otherwise. This right is set out in Virginia Code §§ 64.2-300 through 64.2-308, and it applies whether there is a will or not. In 1991, the General Assembly strengthened and defined this protection in detail.

The elective share is based on something called the augmented estate, which often reaches beyond the probate estate. That larger base helps stop unfair disinheritance through beneficiary designations or lifetime transfers.

Who is Eligible for the Elective Share?

Any surviving spouse can claim the elective share unless the spouse signed a valid waiver in a prenuptial or postnuptial agreement. The waiver must meet Virginia Code § 64.2-314. If there is no valid waiver, the right remains in place.

If you are unsure whether a waiver is enforceable, we can review the document and timing, then explain options that fit your situation.

Calculating the Elective Share: The Augmented Estate

Virginia uses the augmented estate to calculate the elective share. This figure starts with the probate estate, then adds certain non-probate transfers made during life or at death without full value in return. The goal is to look at the full economic picture, not just probate assets.

Once the augmented estate is set, your share is one-third if the decedent left children or their descendants, or one-half if not, as stated in § 64.2-304. The math can get tricky because credits apply for what you already receive outside probate.

These calculations can affect everyone’s share, which is why a careful review helps avoid surprises and delays.

Assets Included in the Augmented Estate

The augmented estate includes the probate estate after payment of allowances, exemptions, funeral costs, administration expenses, and debts (see § 64.2-305). It also pulls in certain non-probate transfers and property interests where the decedent kept control or a benefit.

  • Transfers with a retained life interest or control, such as revocable trusts or assets where the decedent kept the right to income.
  • Joint accounts and property with right of survivorship to the extent of the decedent’s contribution.
  • Gifts made within the year of death and the five years before it that are larger than the federal annual exclusion for any single recipient.
  • Life insurance and payable-on-death arrangements can be part of the picture when the decedent owned or controlled the policy.

Some property is excluded; for example, transfers made with the surviving spouse’s written consent or separate property received by gift or inheritance and maintained as separate (see § 64.2-305 B). Each exception is technical, so small details often matter.

Table: Quick Reference on Virginia Elective Share Rules

Issue Rule Code Citation
Claim window File within 6 months of probate or qualification in intestacy § 64.2-302 B
Extension Up to 90 days if a suit is pending on will construction or augmented estate § 64.2-303
Share amount One-third with children or their descendants, one-half otherwise § 64.2-304
Augmented estate contents Probate estate, plus certain non-probate transfers and interests § 64.2-305
Credit for property Value already passing to the spouse counts toward the share § 64.2-306 A
Contribution by others Recipients of transfers contribute proportionally to any shortfall § 64.2-306 B–E
Family residence Spouse can occupy the home rent-free while rights are set § 64.2-307
Bar to rights Desertion or abandonment can bar the elective share § 64.2-308

 

This framework helps set expectations, yet every estate brings its own facts and documents.

Filing a Claim for the Elective Share: Deadlines and Procedures

Timing is tight. You must make the claim within six months of the will’s probate or the appointment of an administrator in an intestate case (see § 64.2-302).

  1. Confirm the probate date or qualification date, then calendar six months out.
  2. File your claim in person before the court, or record a signed writing in the clerk’s office that meets recording rules.
  3. If a court case is pending to interpret the will or set the augmented estate, ask for up to a 90-day extension under § 64.2-303.

Keep a file-stamped copy and send notice to the personal representative. Missing the window can close the door.

Satisfying the Elective Share

Property already passed to you by will, survivorship, beneficiary form, or lifetime transfer is credited first, § 64.2-306 A. If that does not reach the full amount, others contribute in proportion to what they received.

  • Convey property included in the augmented estate equal to the amount owed.
  • Pay cash equal to the liability, or different property if the spouse agrees.
  • Use a mix of property and cash when needed to reach the value.

If a person fails to choose a method within 30 days after the court’s final allocation, the court can order how the contribution will be made, § 64.2-306 E.

Rights in the Family Residence

While your elective share claim is pending, you can occupy the principal family residence and its curtilage rent-free, and without paying repairs, taxes, or insurance, § 64.2-307. If you are kept out, you can seek possession and damages through an unlawful entry or detainer action.

This right does not erase tax liens, but it gives breathing room while your share is set.

Exceptions to the Elective Share

Statutory rights can be barred if a spouse willfully deserted or abandoned the other, and that conduct continued until death, § 64.2-308. A valid waiver in a marital agreement can also limit or waive the elective share if it meets § 64.2-314.

If anyone claims a bar applies, gather records and correspondence promptly since facts matter in these disputes.

Contesting an Elective Share Claim

Executors, administrators, or heirs can challenge a claim, often arguing about what is in the augmented estate, whether a waiver applies or whether time limits ran out. These cases can be charged, especially in blended families or later-in-life marriages, which many courts have seen.

If there is a court fight, you have the right to an estate attorney. The process can involve discovery, witnesses, depositions, and financial records to prove values and timing of transfers.

When possible, we try to resolve disputes early to limit expense and stress, yet we are ready to present a clear record in court if needed.

Seeking Guidance on Your Elective Share Rights?

Every elective share claim runs on tight deadlines and detailed proof. Our team at Commonwealth Life and Legacy Counsel helps spouses file timely claims, value the augmented estate, and work through credits and contributions. We serve families from our Powhatan offices, and we know the local courts and procedures in Central Virginia.

Ready to talk with someone who will listen and act? Call us in Central Virginia at 434-589-2958 or in Powhatan at 804-598-1348, email info@winget-hernandez.com, or visit our Contact Us page. A short call can help you see your next steps with clarity. We are ready when you are.