Virginia Enacts Changes to Spousal Elective Share Rules (Effective 1/1/2017)

During its 2016 Session, the General Assembly of Virginia amended its elective share statutes (which allow a surviving spouse to claim a percentage of the augmented estate of the deceased spouse) to include new terms of the Revised Uniform Probate Code. While the previously enacted Code provisions for the determination of an elective share were deemed to provide primarily for the support of the surviving spouse, the new uniform provisions treat marriage as an economic partnership and include a vesting schedule based on the number of years the couple was married in order to determine the final amount payable to the surviving spouse.

Rather than analyzing only the assets of the deceased spouse, the new legislation also calculates the total assets of both spouses in order to determine the assets available for the elective share of the surviving spouse. Further, under the Revised Uniform Probate Code, the surviving spouse could be entitled to a distribution of 50% of the couple’s marital assets, rather than a distribution of 30% as was previously provided under certain circumstances. Finally, in those cases where a couple was married less than 15 years prior to the death of the deceased spouse, the new statute includes a “vesting schedule” which substantially decreases the amount the surviving spouse could be entitled to receive.

Virginia’s new Revised Uniform Probate Code provisions pertaining to the calculation and entitlement of the elective share are effective as of January 1, 2017, and the changes can be viewed here.