Trust, Estate & Wealth Transfer Update - Length of Marriage Now a Consideration for Surviving Spouse's Rights Under Virginia Law

Length of Marriage Now a Consideration for Surviving Spouse's Rights Under Virginia Law

Beginning for decedents who die on or after January 1, 2017, the newly revised Virginia augmented estate statute significantly changes the rights of surviving spouses, even taking into account how long the parties were married. The changes reflect the more current notion of a married couple working together as partners over the years of their union.

In simplified terms, under the prior law a surviving spouse had the option to take an elective share amount of the decedent's augmented estate instead of receiving what was left to him or her by the will of the decedent. If the decedent had children, the elective share amount was one-third, and if not, the elective share amount was one-half.

Under the new statute, the augmented estate is defined differently, and it includes the total value of the decedent's probate and non-probate assets, as well as the total value of the surviving spouse's assets and transfers to others. The elective share amount for all surviving spouses is 50% of the value of the marital property portion of the augmented estate. The marital property portion of the augmented estate is determined by the length of time the couple was married. For example, for spouses married less than one year, the martial property portion of the augmented estate is 3% and for couples married for fifteen years or more, the marital property portion of the augmented estate is 100%.

As an example, imagine if the augmented estate is $500,000. For a couple married less than one year, the elective share amount is $7,500, and for a couple married more than fifteen years, the elective share amount is $250,000.

Of course, there are a number of nuances within the statute that greatly impact the calculation of the augmented estate. Also, there are other provisions in the Code of Virginia that provide for additional rights for surviving spouses.

As members of the Trust, Estate & Wealth Transfer group at Kaufman & Canoles, we work with surviving spouses to analyze the decedent's and the spouse's assets, discuss options, and ultimately assist the survivor in making strategic and thoughtful decisions, including the choice as to whether to claim an elective share of the marital portion of the augmented estate. We also work with clients during their lifetimes to put in place premarital or postmarital agreements and to structures their trusts and other estate planning documents so as to prevent a surviving spouse from filing claims against an estate and disrupting the decedent's intentions.