## Elective share in Virginia An **elective share** lets a surviving spouse claim a minimum portion of the deceased spouse's estate — overriding the will's terms. It exists to prevent disinheritance of spouses. ### Virginia elective share 1/3 (with children) or 1/2 (no children) — modified UPC. ## Why elective shares exist Without elective-share laws, a spouse could be entirely disinherited by will. Elective shares ensure the surviving spouse gets some minimum share — even if the will leaves everything to children, charity, or others. ## Three frameworks across states **1. Common-law fixed share.** Statutory percentage (typically 1/3 or 1/2) of probate estate, regardless of marriage length: - Often "1/3 if descendants"; "1/2 if no descendants" - Calculated against probate estate (not non-probate transfers) - Older approach with disadvantages **2. Uniform Probate Code (UPC) augmented estate sliding scale.** Adopted in modified form by many states: - **Augmented estate** includes non-probate transfers (life insurance, joint accounts, trusts) — closes loopholes - **Sliding scale** based on marriage length (3% under 1 year up to 50% at 15+ years) - Better protection for long marriages; less for short marriages **3. Community / marital property.** AZ, CA, ID, LA, NV, NM, TX, WA + WI: surviving spouse owns 1/2 of community property automatically — no traditional elective share needed. ## Augmented estate (UPC states) **Augmented estate** prevents disinheritance via non-probate transfers. Includes: - Probate estate - Will substitutes (revocable trusts, POD accounts) - Life insurance proceeds - Joint tenancy property (the deceased's portion) - Retirement / pension benefits paid out - Property given away within 2 years of death Spouse's own assets are also added to the calculation, then deducted as a credit. This balances the calculation when both spouses have substantial assets. ## When elective share applies - **Death of one spouse** - **Surviving spouse is alive at death** - **Marriage was valid** (not annulled) - **No effective waiver** (prenup, postnup, ante-nuptial agreement) - **Election filed within statutory deadline** (typically 6-9 months from will admission) ## Time limits All states require timely filing: - **Most states** — 6-9 months from will admission to probate - **Some states** — extended for good cause - Missing the deadline = forfeit the right ## Ways spouse can lose elective share - **Prenup / postnup** waiving right - **Separation agreement** waiving - **Abandonment** (in some states) - **Adultery** (in some old-school states) - **Murder** of decedent (slayer rule) - **Late filing** ## Strategic considerations **For surviving spouse:** - Compare elective share vs will provisions - Consider tax implications (some elective-share property triggers tax) - Account for non-probate transfers received outside the will - File within deadline - Consider bringing will-contest in parallel **For estate planners:** - Spouses can reduce elective shares with valid prenups - Some states allow trust transfers that reduce augmented estate - Estate planning for blended families needs careful elective-share analysis - Charitable gifts may face reduction by elective-share claims ## Election waiver — prenup / postnup Most states recognize prenuptial / postnuptial waivers of elective share IF: - Voluntary - Full disclosure - Signed before / during marriage - Knowledge of right being waived - Not unconscionable Without a waiver, spouses retain elective-share rights regardless of will provisions. ## What you should do If you're a surviving spouse in Virginia: review the will + elective-share calculation immediately. Hire a probate attorney quickly — deadlines are short. If you're an estate planner: don't ignore elective shares when designing plans for second marriages, blended families, or contentious situations. Most Virginia estate-planning / probate attorneys offer paid initial consultations. --- *This guide is general information about Virginia law as of early 2026 and is not legal advice. Elective-share calculations are technical. Talk to a licensed Virginia probate / estate-planning attorney about your specific situation.*