Surviving Spouse's Elective Share

Question 1

Surviving Spouse’s Elective Share in VA

Answer 1

if the decedent was domiciled in VA at the time of their death –> their surviving spouse has the right to claim a STATUTORY share of the decedent’s estate.

The amount of the share is 50% of the value of the marital property portion of the augmented estate.

Question 2

when is a right to claim an elective share available??

Answer 2

the right to claim an elective share is available for both TESTATE and INTESTATE estates (can claim if there is a will or if no will)

Question 3

how do we calculate the marital portion of the augmented estate??

Answer 3

adding up following three things
1) net probate estate (after expenses - except for estate tax), (PLUS)
2) all non probate transfers, (PLUS)
3) surviving spouse’s property, (PLUS)

then multiply this augmented estate by a statutory percentage that is based upon length of the marriage
less than 1 year = 3%
1 year but less than 2 = 6%
2 years but less than 3 = 12%
3 years but less than 4 = 18%
4 years but less than 5 = 24%
5 years = 30%

6 years but less than 7 = 36%
7 years but les than 8 = 42%
8 years but less than 9 = 48%
9 years but less than 10 = 54%
10 years = 60%

11 years but less than 12 = 68%
12 years = 76%
13 years = 84%
14 years = 92%
15 years OR MORE = 100%

THIS GIVES US MARITAL PORTION OF THE AUGMENTED ESTATE – and since VA apportion 50% of this - we take 50% of this! and this is what the ‘statutory’ share is that the surviving spouse has a right to claim

**recognize that non-probate assets are ADDED BACK into the augmented estate (#2)

Question 4

how does a spouse claim an elective share??

Answer 4

to claim an elective share, the spouse must file a NOTICE OF ELECTION within 6 months from the admission of the will to probate, or if non, from the appointment of an administrator

then the surviving spouse must then file the complaint to determine the elective share no later than 6 months after the filing of the election

Question 5

who may elect on behalf of spouse?if th

Answer 5

**the right to elect is PERSONAL to the surviving spouse and cannot be made by a personal representative if the spouse dies before the election is made.

The spouse need only have sufficient capacity to understand their right to elect against the will and receive a statutory share of the estate, and know that they are making such an election

Question 6

what if the spouse is incapacitated?

Answer 6

if the spouse is incapacitated, the election may be made by their conservator or agent under the authority of a durable power of attorney.

Question 7

how to satisfy the elective share of a surviving spouse?

Answer 7

All interests that have passed to the spouse are first applied to satisfy the elective share.

The liability for the balance is equitably apportioned among all recipients of the augmented estate in proportion to the value of their interests.

Question 8

“augmented estate”

Answer 8

The augmented estate includes the
1) net probate estate (estate after payment of family allowance, exempt property, debts, and expenses, but before payment of taxes),
2) nonprobate transfers to third persons,
3) nonprobate transfers to the surviving spouse, and
4) the surviving spouse’s property and nonprobate transfers to others.

Question 9

non probate transfers to third persons during marriage

Answer 9

The following transfers to persons other than the spouse are included in the augmented estate:

a) Property that PASSED OUTSIDE PROBATE, including property over which the decedent held a presently exercisable general power of appointment, property held in joint tenancy, property held in payable on death or transfer on death designations, and life insurance proceeds;

b) Property TRANSFERRED BY THE DECEDENT DURING THE MARRIAGE, including irrevocable transfers in which the decedent retained the right to the possession or enjoyment of the property and transfers in which the decedent created a power over income or property for the benefit of the decedent; and

c) Property that PASSED DURING THE MARRIAGE AND DURING THE 2 YEAR PERIOD BEFORE THE DECEDENT’S DEATH, including property that passed as a result of the termination of a right or interest in property that would have been included in the augmented estate if the right or interest had not terminated until the decedent’s death, any transfer of a life insurance policy that would have been included in the augmented estate had the transfer not occurred, and any transfer made to or for the benefit of a third party if the value of the property exceeded the amount excludable under the federal gift tax.

Question 10

nonprobate transfers to surviving spouse

Answer 10

The augmented estate includes the value of all property that passed outside probate from the decedent to the surviving spouse, including the decedent’s interests in joint tenancies and property held in co-ownership with the right of survivorship or with payable on death or transfer on death designations.

This also includes all other property that would have been included in the augmented estate had it passed to or for the benefit of a person other than the spouse, the decedent, or the decedent’s creditors, estate, or estate creditors.

Question 11

Surviving Spouse’s Property and Nonprobate Transfers to Others

Answer 11

The surviving spouse’s property is included in the augmented estate, including
(1) the spouse’s interests in property held in joint tenancy or in co-ownership registration with the right of survivorship;

(2) property that passed to the spouse by reason of the decedent’s death (excluding the homestead allowance, family allowance, exempt property, and federal Social Security payments); and

(3) property that would have been included in the spouse’s nonprobate transfers to others had the spouse been the decedent.

Question 12

what are transfers that are NOT included in the augmented estate?

Answer 12

The following transfers are not included in the augmented estate:
- transfers to third persons before marriage;
- transfers with the written consent or joinder of the surviving spouse; and
- property acquired by gift, will, transfer in trust, intestate succession, or any other form of transfer provided it is maintained as separate property.

Question 13

what must the party seeking to include a transfer in the augmented estate prove?

Answer 13

The party seeking inclusion of a transfer in the augmented estate has the burden of proving that it should be included, while the party seeking exclusion of a transfer has the burden of showing that it meets one of the exceptions listed in the items that are not included in augmented estate

Question 14

Family allowance - what is it?

Answer 14

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

While the court can order a larger or smaller allowance, a personal representative may determine and distribute an allowance not in excess of $24,000 without court approval.

This allowance, which has priority over all creditors’ claims, is over and above amounts passing to the spouse by will, intestacy, or elective share.

Question 15

exempt PERSONAL property set aside - $20,000

Answer 15

In addition to amounts passing to the surviving spouse by will, intestate succession, or elective share, the spouse (or, if none, the minor children) is entitled to SELECT HOUSEHOLD furniture, furnishings, automobile, appliances, and personal effects, not to exceed $20,000 in value.

This set-aside has priority over all claims except family allowance.

Note that property specifically bequeathed by the decedent’s will cannot be selected if other items of sufficient value are available.

Question 16

$20,000 homestead allowance

Answer 16

In addition to the family allowance and exempt property, the surviving spouse (or, if none, the minor children) is ENTITLED TO A HOMESTEAD ALLOWANCE OF $20,000, which has priority over all claims other than family allowance and exempt personal property.

Unlike those entitlements, however, this allowance is in lieu of property passing to the spouse by will or intestacy.

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 17

spouse’s right to occupy the family residence // right of quarantine

Answer 17

If the spouse files for an elective share, or if the decedent died intestate survived by descendants from an earlier marriage, the spouse is entitled to live in the principal family residence WITHOUT CHARGE until their rights to the home are determined.

This is known as the “right of quarantine.”

Question 18

waiver?? can any of these ‘rights’ be waived?

Answer 18

All of the foregoing rights may be waived by a WRITTEN and SIGNED marital or premarital agreement.

No consideration for the agreement is required.

Question 19

what does a spouse who abandons or deserts their spouse get??

Answer 19

If a spouse WILLFULLY DESERTS OR ABANDONS the other spouse, and the desertion continues until the abandoned spouse’s death, the deserting spouse is BARRED of all statutory rights in the decedent’s estate, including elective share, intestate share, exempt property, family allowance, and homestead allowance.

Question 20

COMMUNITY PROPERTY in Virginia

Answer 20

In a COMMUNITY PROPERTY STATE - property acquired DURING marriage from either spouse’s salary/wages is COMMUNITY PROPERTY and is owned ONE-HALF by each spouse.

Separate property consists of
1) property owned by either spouse before marriage
2) property acquired during marriage by gift, will, or inheritance

in community property jurisdictions - all assets acquired during the marriage are presumptively community property

Question 21

Uniform Disposition of Community Property Rights at Death Act

Answer 21

Virginia has enacted the Uniform Disposition of Community Property Rights at Death Act (“UDOCPRADA”).

The Act applies to property that was acquired while a married couple was domiciled in a community property state and characterized as community property.

When the first spouse dies, one-half of such property is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under Virginia’s laws of succession.

The decedent’s one-half share of such property (the property to which the Act applies) is not subject to the surviving spouse’s right to elect against the will.