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Rights of a Surviving Spouse

What rights do you have?

If your spouse dies, you, as the surviving spouse, have a right to receive assets from your deceased spouse's estate, even if their will or trust makes no provision for you. In Virginia you are entitled to a family allowance, an exempt property claim and an elective share of your deceased spouse's augmented estate. These claims are payable from your deceased spouse's probate estate or trust or in some instances by persons who received assets which belonged to your spouse by beneficiary designation or joint ownership.

The family allowance in Virginia is $2,000 per month, payable for at least a year. It can be paid monthly or in one lump sum. If the decedent had minor children, the allowance is for use by the children and the surviving spouse. The allowance is payable to the surviving spouse. This allowance has priority over debtor claims against the estate. The family allowance is in addition to any other benefit passing to the surviving spouse or minor children by will, intestate succession or elective share.

Exempt Property Claim

In addition to the family allowance, the surviving spouse is entitled to receive tangible personal property valued up to $20,000 from the decedent's estate. This is called the exempt property claim. If there is not $20,000 worth of exempt property, the surviving spouse can receive money from the estate sufficient to bring their claim up to $20,000.

If there is no surviving spouse, minor children can share the exempt property claim. As with the family allowance, the right to exempt property is in addition to any other benefit passing to the surviving spouse.

When to Use the Homestead Allowance

For very small estates with limited assets, a surviving spouse may want to consider claiming the homestead allowance of $20,000.00. If there is no surviving spouse, each minor child of the decedent is entitled to claim the family allowance, with the $20,000 being divided among the minor children.

If this allowance is claimed, the surviving spouse is not entitled make an elective share claim. Nor can the surviving spouse take anything under the decedent's will or by intestate succession, unless what they would get under the will or by intestate succession is less than $20,000 and then they can claim the difference up to the $20,000 maximum.

Using the Elective Share

Most surviving spouses omitted from their deceased spouse's will or trust, or not satisfied with what was left to them, should consider filing for an elective share of the deceased spouse's augmented estate. The surviving spouse is entitled to one-third of the decedent's augmented estate if the decedent left surviving children or their descendants or one-half if there are no surviving children or their descendants. The augmented estate includes both probate and non-probate assets such assets held in a trust, life insurance proceeds and retirement benefits.

Making an elective share claim can be complicated. Our Fairfax probate attorneys are experienced in making and litigating statutory claims on behalf of surviving spouses and in defending against such claims on behalf of executors, trustees and beneficiaries. Jean Galloway Ball successfully litigated a leading case in Virginia on elective share claims, Dowling v. Rowan, 270 Va. 510, 621 S.E.2d 397 (2005).

Contact our office for a consultation to review your rights and explore your options!