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Surviving Spouse Rights Virginia

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Surviving spouses are entitled to many rights and benefits under Virginia law.  Surviving spouse rights in Virginia include the right to a maintenance allowance, exempt property, a homestead allowance, and an elective share of the augmented estate.  Learning about your rights under Virginia law is the first step to navigating the probate process.

Surviving Spouse Rights In Virginia When There Is No Valid Will – Intestacy 

If a resident of Virginia passes without a will, they have died intestate.  In an intestate estate, Virginia law governs the disposition of assets.  The share of the surviving spouse depends on whether or not decedent had surviving descendants. 
The surviving spouse is entitled to the entire estate if there are no descendants.  If the deceased spouse has descendants, all of whom are also descendants of the surviving spouse, the spouse inherits the entire probate estate.  If the deceased spouse has descendants, at least one of whom is with someone other than the surviving spouse, the surviving spouse is entitled to one-third of the estate.  Virginia Code 64.2-304.

Surviving Spouse Right to Elective Share

A surviving spouse has the right to claim an elective share under Virginia law.  The elective share can be claimed regardless of whether (1) any provision for the surviving spouse is made in the decedent’s will or (ii) the decedent died intestate.  Virginia Code 64.2-302The percentage the surviving spouse receives is based on whether there are descendants of the deceased spouse.  If the decedent is survived by descendants, the surviving spouse is entitled to one-third of the augmented estate.  If the decedent is not survived by descendants, the surviving spouse is entitled to one-half of the augmented estate. 
 The augmented estate includes probate assets of the decedent, plus assets passing outside the probate estate, such as joint accounts, plus certain transfers by the decedent during his or her lifetime. The augmented estate includes real and personal property.

Deadline To Claim The Elective Share

The surviving spouse must file within  6 months from the date of probate of the will or the qualification of an administrator on the intestate estate a claim on the decedent’s augmented estate.  If there is a pending suit regarding the spousal share’s value or value of the estate, on petition, the court can grant an extension to filing the elective claim, but the extension can not be longer than ninety (90) days from the final order in the pending suit.

Virginia Pretermitted Spouse

If the deceased spouse created a will prior to the marriage, the spouse is considered pretermitted, which means that the surviving spouse is entitled to inherit as if there were no will.

Surviving Spouse Allowances and Exemptions 

Virginia law permits a surviving spouse certain allowances and exemptions.  These include:
  • Support allowance not to exceed $24,000
  • Exempt property not exceeding $20,000
  • Homestead allowance of $20,000

Denial of Spousal Rights for Bad Behavior

If the surviving spouse, prior to the death of the deceased spouse, willfully deserts or abandons the decedent prior to decedent’s death and such desertion or abandonment continues until death, the deserting spouse will be barred of all interest in the estate of the decedent by intestate succession, elective share, exempt property, family allowance, and homestead allowance.

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