Virginia Law – Rights of the surviving spouse

By Attorney Jennifer D. Kahl on December 10, 2018

If your spouse has died you are probably experiencing a whirlwind of emotions. This are even more stressful if you are concerned about your rights to your spouse’s assets. It is not uncommon for creditors, children, or other family members to jeopardize your claim to your spouse’s estate. Fortunately, Virginia law protects your rights in a variety of ways.

The Family Allowance

A surviving spouse has a right to receive “a reasonable allowance” from the estate during the period of the estate’s administration. This may be paid in monthly installments of up to $2,000/mo. for one year, or in a lump payment of up to $24,000. This amount is in addition to whatever else the spouse gets through the will, by intestate succession, or through the elective share. The Family Allowance has priority over all other claims against the estate, which means you could get this even if the estate is insolvent. Virginia Code § 64.2-309.

The Exempt Property Allowance

A surviving spouse is entitled to $20,000 worth of the spouse’s tangible personal property, including furniture, vehicles, and personal items. If the surviving spouse doesn’t want $20,000 worth of personal property, or if there is not that much personal property in the estate, the remaining value can be paid in cash. This amount is in addition to whatever else the spouse gets through the will, by intestate succession, or through the elective share. The Exempt Property Allowance has priority over all claims except the Family Allowance, which means you could get this even if the estate is insolvent. Virginia Code § 64.2-310.

The Homestead Allowance

A surviving spouse is entitled to the Homestead Allowance of $20,000. This has priority over all other claims except the Family and Exempt Property Allowances. However, the Homestead allowance is in lieu of what the spouse would receive through the will, through intestate succession, or through the elective share. Virginia Code § 64.2-311. A spouse would only choose to take the Homestead Allowance their inheritance through any other avenue was less than $20,000. The result of the three allowances is that any surviving spouse should get the first $64,000 of the deceased’s estate.

The Omitted Spouse

An “omitted spouse” under Virginia Code 64.2-422  is a spouse who is left out of the decedent’s will because the decedent executed the will prior to the marriage. The law assumes that decedent intended to provide the spouse, but never got around to updating the will. An omitted spouse is entitled to whatever share he or she would get if the decedent died without a will. Virginia Code 64.2-200. This would be one-third (1/3) if the decedent had children from prior relationships, or 100% if there are no children from prior relationships.

The Elective Share

A disinherited spouse may have additional claims on the estate through the Elective Share. The calculation of the elective share differs significantly depending on whether the spouse died before or after January 1, 2017. For people who lost their spouse after January 1, 2017, you first calculate the “augmented estate.” This is done by totaling everything that is owned or was owned by either spouse on the date of death, including life insurance proceeds. The spouse’s share of the augmented estate will range from 1.5% to 50%, depending on the length of the marriage. Virginia Code § 64.2-300 et. seq.

Conclusion

If you have been disinherited by your spouse, or if you spouse has an insolvent estate, you should consult with an experienced estate administration attorney. The attorneys at The Heritage Law Group can help you identify your rights and choose the best course of action.