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Hampton Roads Estate Planning and Administration Law Blog

Saturday, July 1, 2017

Spousal Rights in Their Deceased Spouse's Estate

By: Joseph T. “Chip” Buxton III, Certified Elder Law Attorney*

On January 1, 1991, the Virginia General Assembly enacted a new statute regarding the rights of a spouse in their deceased spouse’s estate.  This statute introduced the concept of an “augmented estate.”  What this meant was that when a husband or wife died, the surviving spouse had certain rights in their marital property defined as the augmented estate, even if the decedent had written a will or a trust designed to disinherit their spouse.  The surviving spouse could simply file a claim in court for a share of the couples augmented estate and could elect to take 1/3 of the augmented estate if there were children or ½ of the augmented estate if there were no children. 

However, as of January 1, 2017, a new statute §64.2-300 of the Code of Virginia 1950, as amended, will radically change this concept.  The Virginia General Assembly is modifying the augmented estate rules so that a surviving spouse has the right to demand a share of the deceased spouse’s estate based upon the length of the marriage.  The legislature adopted a theory of economic partnership whereby the longer the marriage, the greater the interest of the surviving spouse.  This would address the situation where a younger woman marrying a wealthy senior citizen who then died shortly after the marriage and claims a large part of their husband’s assets as part of the augmented estate.

In simple terms, under the new law, a spouse claiming an interest in their deceased spouse’s estate would be entitled to a share of the augmented estate based on the length of the marriage under a graduated scale from one year to 15 years.  If the marriage was less than one year, the surviving spouse would be entitled to 3% of the deceased spouse’s share of the augmented estate, at 10 years, they would be entitled to 60 % and at 15 years or more, they would be entitled to 100% of the spouse’s augmented estate.

Joseph T. Buxton III is the founder of TrustBuilders Law Group, Buxton and Buxton, PC with offices in Yorktown, Williamsburg, Urbanna and Virginia Beach, VA or visit their website at www.trustbuilders.com.  He can be reached at 804-758-2244 or chipbuxton@trustbuilders.com

 

 


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