A Post-Mortem, Spousal Surprise: Can My Husband Write Me Out of His Will?

Young couple after quarrel sitting on sofaImagine this potentially devastating situation.  Your spouse unexpectedly dies.  You find his will and discover, shockingly, that he left everything to his adult son (or his mistress)!  Is there anything you can do?

This situation commonly arises when a husband and wife are separated but not yet divorced.

Under Virginia law, a spouse possesses certain rights to what is known as the elective share.  Think of the elective share as a floor for a spouse’s inheritance.  It can be invoked even if the deceased spouse writes the surviving spouse out of his or her will.

Under current law, a surviving spouse can be entitled to a certain portion of what is known as the deceased spouse’s “augmented estate.”  The components of the augmented estate include things such as the decedent’s probate assets (less certain expenses and enforceable debts), non-probate transfers to others (such as payable on death type accounts), and non-probate transfers to the surviving spouse (such as co-owned accounts or certain real estate).  The exact components of the augmented estate are quite complicated, and a full discussion of those is well beyond the scope of this post.

The elective share is governed by statute.  Making a claim is subject to strict time limitations.  To make an elective share claim, a surviving spouse must make the election with the appropriate court within six months from the later of (i) the time of the admission of the deceased spouse’s will to probate, or (ii) the qualification of an administrator on the deceased spouse’s intestate estate.

CAUTION: The elective share framework underwent a massive overhaul during the 2016 session of Virginia’s General Assembly.  The General Assembly was perhaps motivated to protect people from quick sham marriages which sometimes result in massive inheritances for spouses married a very short time.

For people whose spouses die before January 1, 2017, the elective share in Virginia is a fixed amount, depending on whether the deceased spouse left children or descendants of those children.  In other words, there is a set amount that the surviving spouse is entitled to if they can prove an elective share claim.  They are entitled to either one of two amounts, regardless of whether the marriage lasted one day or sixty years.  Under current law, if the deceased spouse left no surviving children or descendants of those children, a surviving spouse may claim one-half of a deceased spouse’s augmented estate.  If the deceased spouse left a surviving child or children (or their descendants), a surviving spouse may claim one-third of a deceased spouse’s augmented estate.

However, beginning for people whose spouses die after January 1, 2017, the framework dramatically changes.  The surviving spouse will be entitled to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.  To determine the marital-property portion, you take the augmented estate value and multiply it by a certain percentage, based on the length of the marriage.   The marital-property portion percentages are graduated based on the length of the marriage.  For example, for marriages lasting less than one year, a surviving spouse’s marital-portion of the augmented estate will be 3% of the augmented estate.  After fifteen years of marriage, the marital-property portion of the augmented estate will be 100% of the augmented estate.

Are there any limits or defenses to an elective share claim?  Yes.  The elective share is not guaranteed.  A person may waive his or her right to an elective share claim under an enforceable pre-marital agreement. Additionally, a surviving spouse may not claim the elective share if: (i) the surviving spouse willfully deserted or abandoned the deceased spouse, and (ii) such desertion or abandonment continued until the death of the deceased spouse.

The elements and procedure of the elective share are complicated.  As a result, if your deceased spouse wrote you out of his or her will, you should quickly consult an experienced estate litigation attorney for assistance.


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