Virginia Probate – Rights of the Surviving Spouse
By Attorney Jennifer D. Kahl on December 10, 2018 (updated July 26, 2021)
If your spouse has just died, you are probably experiencing a whirlwind of emotions. Things 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.
Joint Ownership and Beneficiary Designation
If you own assets jointly with your spouse, then no one else has a claim to them. Likewise, if you are the named beneficiary on an asset, then it’s yours. Usually, conflicts with creditors or family members are limited to the assets comprising the decedent’s estate (i.e. those assets that are not jointly owned and do not have beneficiary designations).
The Family Allowance: A surviving spouse has the 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.
The Exempt Property Allowance: A surviving spouse is entitled to up 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.
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, as an “omitted spouse,” or through the Elective Share. Generally, a spouse would only choose to take the Homestead Allowance if his or her inheritance would be less than $20,000 through any other avenue.
All together, these Allowances mean that the surviving spouse could get the first $64,000 of the estate. This gets paid before any of the decedent’s creditors (including the IRS!) and before the decedent’s other heirs (including your spouse’s children). However, the surviving spouse must file the claim for the Allowances within a year of the decedent’s death. Often, it is a good idea to file the Allowance claims as a preventative strategy, even if you are not currently aware of any creditors or problematic family members.
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 created the Will prior to the marriage. The law assumes that the decedent intended to provide for his spouse, but never got around to updating his Will. An omitted spouse is therefore entitled to whatever share he or she would get if the decedent died without a Will. This is typically one-third (1/3) if the decedent had children from prior relationships, or the entire estate if the decedent has no children from prior relationships. Remember, though, that this only applies to the decedent’s probate assets. It does not apply to assets that pass to other people by way of joint ownership or beneficiary designation. If the omitted spouse has already claimed the Homestead Allowance or Elective Share (see below), she will not be able to claim her portion as an omitted spouse.
The Elective Share
A disinherited spouse may have claim to the estate through the Elective Share. To calculate the elective share, you first identify the “augmented estate.” With few exceptions, the augmented estate includes everything that was owned by either spouse on the date of death, including any assets that became available due to the decedent’s death, such as life insurance policies. The augmented estate is generally much larger than the probate estate (see here for a calculation of the probate estate). The spouse’s share of the augmented estate will range from 1.5% to 50%, depending on the length of the marriage. The spouse’s share is first satisfied by his or hew own assets, and the difference is then made up by the decedent’s assets.
For example, let’s say that Husband died with $60,000 and surviving Wife has $40,000. Husband’s Will was created after his marriage to Wife (meaning that Wife is not an “omitted spouse,” explained above), and it leaves everything to Son. The augmented estate will be $100,000, which is the total of Husband’s and Wife’s assets. Let’s say that the length of the marriage entitles Wife to 50% of the augmented estate. That means her Elective Share is $50,000. Since she already has $40,000 of her own money, she only gets $10,000 of Husband’s money. The rest goes to Son. In this scenario, Wife would have been better off claiming the Homestead Allowance of $20,000.
Note: the calculation of the elective share differs significantly for those who lost spouses prior to January 1, 2017.
If you have problematic stepchildren, 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.