protection of the family

Question 1

family allowance

Answer 1

By statute, the spouse or children whom the decedent was legally obligated to support are entitled to a REASONABLE allowance for the period that the estate is in probate.

A personal representative may determine and distribute an allowance of no greater $24,000 without court approval.
[note that the court can order a larger or smaller allowance]

– allowance has priority over all creditors’ claims

– Allowance is over and above amounts passing to the spouse by will, intestacy, or elective share.

Question 2

homestead allowance

Answer 2

surviving spouse (or, if none, the minor children) is entitled to a homestead allowance of $20,000

– priority over all claims other than family allowance and exempt personal property

LIMITATIONS

Spouse takes this allowance IN LIEU OF property passing to the spouse by will or intestacy [or, if the amount under the will or intestacy is less than $20k, they can receive homestead allowance up to that amount].

If the decedent died on or after January 1, 2017 and the surviving spouse claims an elective share, the spouse may receive the homestead allowance in addition to the elective share.

However, if the decedent died before January 1, 2017, the surviving spouse may not claim both.

Question 3

exempt personal property

Answer 3

Spouse entitled to select household furniture, furnishings, automobile, appliances, and personal effects, not to exceed $20,000 in value

priority over all claims except family allowance

Question 4

surviving spouse’s elective share

Answer 4

If the decedent was domiciled in Virginia at the time of their death, their surviving spouse has the right to claim a statutory share of the decedent’s estate = 50% of the value of the marital property portion of the augmented estate.

The right to claim an elective share is available for both testate and intestate estates

Question 5

how to calculate surviving spouse’s elective share

Answer 5

ELECTIVE SHARE = 50% of the value of the marital property portion of the augmented estate

“MARITAL PORTION OF THE AUGMENTED ESTATE” = percentage of the augmented estate depending on how long the marriage lasted
– < 1 year = 3%
– 5 years = 30%
– 10 years = 60%
– 15 years or more = 100%
[every year beyond 10 years it jumps 8%]
[every year under 10 years it goes down 6%]

Augmented estate =
net probate estate + nonprobate transfers to third persons during marriage + nonprobate transfers to surviving spouse + surviving spouse’s property + nonprobate transfers to others

Question 6

how to make an election under elective share statute

Answer 6

file notice of election within 6 months of admission of will to probate, or, if none, from appointment of administrator

file complaint to determine elective share at most 6 months after filing notice of election