3.28.2023

Protecting Your Spouse, Testator’s Intent, and the Elective Share

 


This guest post is from Michael A. Harris, Regent Law 3L student:

In Estate Planning law, states have routinely recognized that the primary goal of probating a will, or creating intestacy laws, is to capture and carry out the testator's intent. 

When probating a will, freedom of disposition is a primary factor that goes along with what the intent of the testator was when he wrote his will, and his right to distribute to whomever he or she wants is essential to that right.  This is true even when omitting heirs from a will. Even though it may not be what the descendants or heirs want or think they deserve, states routinely recognize this freedom to omit family members from receiving property, i.e. money, homes, etc. of the testator. 

But even with a will and effectuating the testator's intent, many states have safeguards when it comes to spouses and especially spouses with children.  Under Virginia Code § 64.2-308.3, the surviving spouse’s claim to the marital property in the decedent’s augmented estate will be calculated based on the length of the marriage. This is done according to a sliding scale which is laid out in a chart now found in VirginiaCode § 64.2-308.4. Under the scale, a surviving spouse is entitled to 3% of themarital share (or 1.5% of the augmented estate), for marriages less than oneyear up to 100% of the marital share (or 50% of the augmented estate) formarriages of 15 years.  Personally I believe this is great, because it shows that marriage is still respected in our state and country and that spouses, male or female, play an important role in the household as well as the accumulation of assets, no matter how those assets were acquired.

The intent of the testator and his or her freedom of disposition will continue to be recognized, but remember, your spouse gets some of that property as well. God bless!

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