Probate, trust, guardianship and inheritance litigation
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Surviving Spouse Rights Virginia

A surviving spouse is entitled to many rights and benefits under Virginia law, including:

  • Intestate Share
  • Elective Share
  • Maintenance Allowance
  • Exempt Property
  • Homestead Allowance

Learning about your widow’s 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 also 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.

To learn more about intestate succession in Virginia, read Who Are Next of Kin In Virginia.

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 64.2-302.

The surviving spouse has a right of election to take an elective share amount equal to 50% of the value of the marital-property portion of the augmented estate.  Section 64.2-308.3 sets forth the elective share amount under Virginia law and states:

A. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this article, to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.

B. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share amount.

C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.

What Is The Augmented Estate Under Virginia Elective Share Law?

The augmented estate in Virginia is:

  1. Decedent’s net probate estate;
  2. Decedent’s non-probate transfers to others;
  3. Decedent’s non-probate transfers to the surviving spouse;
  4. Surviving spouse’s property and non-probate transfers to others.


What Is The Marital Property Portion of The Augmented Estate In Virginia?

The marital property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate multiplied by a percentage.  The percentage is based on the length of the marriage, and ranges from 3% to 100%, and can be found in Section 64.2-308.4 B.

Deadline To Claim The Elective Share

The surviving spouse must file the elective share election 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.

The surviving spouse’s complaint to determine the elective share must be filed no later than 6 months after the filing of the election.

The time limits applicable to elective share proceedings are found in section 64.2-308.12.

Virginia Pretermitted Spouse

If the deceased spouse created a will prior to the marriage, the spouse is considered pretermitted under Virginia law, which means that the surviving spouse has rights 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 Virginia Surviving Spouse 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.  See Section 64.2-308.

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