Suppose your spouse has just passed away, and their children are telling you that you are receiving nothing? What if you do not know what you’re entitled to? As a surviving spouse, you are entitled to a number of claims, and you should understand your rights.
Spousal claims are those that the General Assembly specifically enacted to protect a surviving spouse, and they are available to most surviving spouses. These claims may be made against a testate or intestate estate (i.e., estates in which a Will was admitted to probate and estates in which no will was admitted to probate). The Estate cannot close, and the Commissioner will not approve a final accounting until these claims are resolved. These claims are given priority in terms of order of payment in insolvent estates (it is a category number 2 claim), and they can be used to assure that the surviving spouse receives something at the death of his/her partner.
This allowance or claim is made when the property passing to the spouse by the Will or through intestacy (i.e., no will) is less than $20,000.00. This allowance can be waived by marital or pre-marital agreement.
Rights in Family Residence
If the house was not titled as tenants by the entireties, a surviving spouse still retains the right to remain the family residence for a period of time after the decedent’s death.
This is a claim that allows payment of up to $24,000.00 to support the spouse and minor children. This claim is in addition to whatever passes to the surviving spouse through the Will or by intestacy. This allowance can be waived by marital or pre-marital agreement. If there is no spouse, the minor children can make a claim.
This allowance allows the surviving spouse to select from the estate up to $20,000.00 worth of property (in excess of any security interests therein) – household furniture, automobiles, furnishings, appliances, and personal effects. If the exempt property is not sufficient, then the surviving spouse may use other assets to satisfy the deficiency. This allowance can be waived by marital or pre-marital agreement. If there is no spouse, the minor children can make a claim.
This particular claim is a statutorily guaranteed right conferred to spouses to prevent the intentional (or unintentional) disinheritance of a spouse. Virginia’s statutes governing elective share have changed dramatically over the last few years, with a more complicated calculation. Essentially, a spouse will be entitled to a percentage of the “augmented estate”, the composition of which is governed by specific statutes. There is a very short window within which an elective share claim can be filed and enforced through the courts.
If you are a surviving spouse, you should know your rights in the Estate, particularly if you are going to receive little or nothing out of the Estate. The Attorneys at Hale Ball have experience with filing such claims and can counsel you as to how and when spousal claims should be made.
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