Rights of a Surviving Spouse
If your spouse dies, you, as the surviving spouse, have a right to receive assets from your deceased spouse’s estate, even if their will or trust makes no provision for you. In Virginia, you are entitled to a family allowance, an exempt property claim, a homestead allowance, and an elective share of your deceased spouse’s augmented estate. These claims are payable from your deceased spouse’s probate estate or trust or in some instances by persons who received assets that belonged to your spouse by beneficiary designation or joint ownership.
The surviving spouse and minor children whom the decedent was obligated to support are entitled to family allowance paid as a lump sum not to exceed $24,000 or in periodic installments not to exceed $2,000 per month for one year. It is paid to the surviving spouse for use of the spouse and the minor children unless the minor children are not living with the surviving spouse. In that case, the allowance is paid partially to the spouse and partially to the person having care and custody of the minor child. The death of any person entitled to a family allowance terminates the person’s right to any allowance not yet paid.
EXEMPT PROPERTY CLAIM
In addition to the family allowance, the surviving spouse is entitled to receive tangible personal property valued up to $20,000 from the decedent’s estate. This is called the exempt property claim. If there is not $20,000 worth of exempt property, the surviving spouse can receive money from the estate sufficient to bring their claim up to $20,000.
If there is no surviving spouse, minor children can share the exempt property claim. As with the family allowance, the right to exempt property is in addition to any other benefit passing to the surviving spouse.
THE HOMESTEAD ALLOWANCE
The homestead allowance is set at $20,000. It may be claimed in lieu of the share the surviving spouse would receive under the Will or through an intestate estate. If there is no surviving spouse, each minor child of the decedent is entitled to up to $20,000, divided by the number of minor children.
For estates where the decedent died after January 1, 2017, the surviving spouse who was omitted from the Will or Trust can claim the homestead allowance in addition to an elective share of the estate.
USING THE ELECTIVE SHARE
Most surviving spouses omitted from their deceased spouse’s will or trust, or not satisfied with what was left to them, should consider filing for an elective share of the deceased spouse’s augmented estate. The amount to which the surviving spouse is entitled increases with the length of the marriage. After 15 years of marriage, a surviving spouse is entitled to half of the marital property portion of the augmented estate of the decedent. The augmented estate includes both probate and non-probate assets such assets held in a trust, life insurance proceeds and retirement benefits.
Making an elective share claim can be complicated. Our Northern Virginia probate attorneys are experienced in making and litigating statutory claims on behalf of surviving spouses and in defending against such claims on behalf of executors, trustees, and beneficiaries. Jean Galloway Ball successfully litigated a leading case in Virginia on elective share claims, Dowling v. Rowan, 270 Va. 510, 621 S.E.2d 397 (2005).
Contact our office for a consultation to review your rights and explore your options!
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