CHARLOTTESVILLE ELECTIVE SHARE ATTORNEYS

ELECTIVE SHARE PROCEEDINGS

When someone dies, we expect that their will adequately and fairly provides for their surviving spouse and children, if any.  However, unfortunately, there are times when an individual passes away and leaves a will that inadequately provides for the surviving spouse or even expressly disinherits the surviving spouse.   As you can imagine, this could be shocking and disheartening to a surviving spouse as they expect to be included in the division of their spouse’s assets.

The law agrees.  A surviving spouse is entitled to receive a certain portion of the deceased spouse’s estate.  And to further strengthen the rights of surviving spouses, the Virginia General Assembly acted in 1991 to carefully define a surviving spouse’s right to an elective share.

In Virginia, a surviving spouse is guaranteed a portion of their deceased spouse’s estate, regardless of whether the decedent left behind a will.  The exact proportion depends on whether the decedent is also survived by any children. If the decedent has surviving children or descendants, the spouse may elect to take one-third of the augmented estate.  If there are no surviving children or descendants, the spouse may elect to take one-half of the augmented estate.

An augmented estate is a pretty complex legal term which is fully defined throughout several statutory provisions.  But, in simple terms, an augmented estate is basically the net estate which encompasses specific property, transfers, and gifts as determined by the applicable statutes.

In order to claim the elective share, the surviving spouse must act promptly and according to the guidelines and procedures set out by Virginia law.  Because the claim must be filed in writing with the court within six months of the appointment of an administrator, you should contact a Virginia elective share attorney without delay.  An experienced Virginia probate attorney can help you fully understand what is included in the decedent’s augmented estate and whether you can or should proceed with an elective share proceeding.

The exact value of the augmented estate can be rather complicated.  As it involves determining the content, composition, and value of the estate, the expertise of a highly qualified and experienced probate attorney is really essential.  The rules governing these situations are very complex and the issues and calculations are very difficult.

Of course, if the decedent left behind a will which provides more than the elective share, there is no point in seeking an elective share.  The surviving spouse would certainly be content with accepting the larger proportion outlined in the will. But, in those cases where a will is not prepared or a will provides little or nothing for the spouse, the surviving spouse may choose to initiate an elective share proceeding.

Understanding the Elective Share of a Spouse

Under the Virginia laws if the deceased person was married, did not have a prenuptial agreement, and never signed a post nuptial agreement that limited the surviving spouse to their assets, the surviving spouse cannot be excluded from the estate. In other words, as a Charlottesville elective share attorney might explain, the surviving spouse can legally claim a portion of the estate. This is known as the elective share. 

Why Elective Share?

Historically, community members did not want to be responsible for widows; this resulted in laws being created that allowed the widow to receive her husband’s assets in the event of his death. Although in the early days of these laws they were meant to protect women, today  they apply to men and women.

Statute of Limitations

As Charlottesville elective share attorneys, we urge anyone who is considering to claim some of an estate using elective share laws to act fast. There are strict time limits, and if they lapse, the spouse may not be able to elect. The surviving spouse and the executor of the estate should as a Charlottesville elective share attorney for help, and to learn whether or not the statue has been passed. 

Contesting Elective Share

It is certainly possible for an executor, administrator, or heir to refuse to recognize a living spouse’s right to an elective share. On the other hand, a spouse might may a demand for an elective share that is impractical or not valid. In both scenarios, litigation may result. All parties involved in the litigation process do have the right to an estate, litigation, or elective share attorney in Charlottesville. If it is not possible to reach a settlement or agreement, discovery may ensue. This process may include witnesses, a deposition, interviews, evidence presentation, and so forth. It will be up to a judge to determine the validity of the claim. 

When The Spouse Was Disinherited or is Left $1 in a Will 

As a Charlottesville elective share attorney, we do get questions from people who have either been disinherited or will disinherit their spouse shortly, and whether or not a disinherited spouse can utilize their elective share rights. In general, if there is no pre or post nuptial agreement, the spouse can exercise their right to receive a portion of the estate through elective share rights. The same applies to a situation in which a spouse chooses to leave, for example, one dollar to their spouse in a will. In this case, as long as their are not pre or post nuptial agreements, elective share rules apply. 

If you are interested in pursuing an elective share or need a better understanding of your rights under Virginia probate law, contact the experienced Virginia probate attorneys at MartinWren, P.C. at (434) 817-3100 and ask for Lewis A. Martin or G. Raye Jones.  We understand that circumstances surrounding the death of a loved one are difficult and stressful.  Our elective share attorneys will listen and provide efficient and effective legal advice and help you resolve your probate issues.