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.
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.