Newlyweds, both young and old – The Commonwealth may be a third party to your nuptials

By Katherine Charapich

The phrase, “To death do us part,” has been a promise frequently found in traditional wedding vows.  Perhaps unbeknownst to many, the Commonwealth extends that commitment to a financial obligation that survives death.  As uncomfortable as the following information may be, the attempted action of disinheriting a spouse does occur.  If you are mad at your spouse and think that you are going to deliver one final and painful message upon your death, not-so-fast.   

For at least a quarter of a century, the Commonwealth has had as part of the Code of Virginia (the Code) language that protects a spouse from being disinherited.  In the event that a decedent attempts to leave a token amount of his assets to his spouse, or no assets at all, the Commonwealth has long called, “foul,” providing an avenue for the surviving spouse to elect to override the decedent’s disinheritance action by claiming the elective share, known as a minimum amount.

The operative word is “elective.”  If the decedent spouse passes and his will leaves a mere token of his assets to the surviving spouse, and the majority balance to someone other than his spouse – for example, his children or a charity, the surviving spouse may determine that is not satisfactory. 

Caution – time is of the essence; per the Code the surviving spouse has six months from the time the decedent spouse’s will is submitted for probate or an administrator qualifies on an intestate estate (an estate passing without a will) to file a claim with the Court, seeking the elective share of the augmented estate.

What is encompassed within the augmented estate are not only the assets that pass through probate, but non-probate assets, as well as those that are considered collective.  As one can imagine, there are exclusions and valuation principals that make the determination of the augmented estate complex.

Recently, the Commonwealth has refined its approach, and made the post-death financial commitment between spouses to carry forth a nature of partnership.  For decedents passing on or after January 1, 2017, in addition to the homestead, family, and exempt property allowances, a surviving spouse may claim the elective share amount, which is 50% (fifty percent) of the marital property portion of the augmented estate, whether or not a decedent left descendants. 

The change that appears to be receiving the most commentary amongst estate planning and elder law attorneys is the “vesting component” of § 64.2-308.4(B) of the Code. 

A spouse can no longer be assured of receiving the full elective share, even if he or she files a timely claim; a spouse now has to “earn it.” 

For example, if the length of the marriage is less than one year, the surviving spouse will only be awarded 3% (three percent) of the elective share’s 50% (fifty percent).  If the couple has celebrated their eighth wedding anniversary, but not their ninth, the surviving spouse will be awarded 48% (forty-eight percent) of the elective share’s 50% (fifty percent). 

Per the Code, an award of 100% (one hundred percent) of the elective share’s 50% (fifty percent) may only be realized when the marriage, at the time of the decedent’s passing, is at least in its fifteenth year.

The concept that a surviving spouse must “earn” a percentage of the elective share certainly seems to provide a protective benefit in the event that within a young marriage a survivor might be awarded a claim that could affect a disproportionate disinheritance to surviving children. 

To an elder law attorney, the benefits against fraud certainly provide strong logic to the Code revisions.  As a counter, and only time will speak to the nuanced outcomes, the new revisions regarding the elective share of the augmented estate make it especially important for those who are newlyweds to have a will or trust in place in the event you want your bride or groom to receive more than the elective share upon your passing.

Katherine S. Charapich, Esq., operates the Estate Law Center, PLLC in downtown Culpeper. Call 540-827-4395.