Disinheriting a Spouse in Virginia

Can a decedent disinherit a surviving spouse in Virginia?

The issue can arise where one spouse drafts an estate plan, using a will and/or trust, to leave all of their assets to a child or extended family member; thus, disinheriting their spouse in Virginia. This leads to whether or not an individual can legally disinherit their spouse. If so, can the surviving, disinherited spouse do anything about it when their spouse passes away? The simple answers, respectively, are no, not really, or at least not entirely, and yes, the surviving, disinherited spouse has options.

Generally, in an intestate estate, which is an estate where there is no valid instrument prepared and legally executed by a decedent spouse (the spouse who passes away), the surviving spouse is entitled to receive the entirety of the estate, so long as there are no children from outside of the marriage, including a prior marriage between the decedent spouse and a third person. In circumstances where there are children from outside of the union, which the surviving spouse has not legally adopted, a surviving spouse in an intestate estate is entitled to one-third of the intestate estate.

Suppose a surviving spouse has been disinherited in an estate, which is an estate where there is a valid will instrument prepared, legally executed by the decedent spouse, and offered to the court for probate purposes, according to Virginia law. In that case, a spouse can take an elective share of the estate. Generally, an elective share provides the surviving spouse the right to receive one-half of the estate if there are no children outside of the marriage, including a prior marriage between the decedent spouse and a third person.

If there are children from outside of the marriage, which the spouse has not legally adopted, the elective share provides the surviving spouse the right to receive one-third of the estate. The elective share considers the entire augmented estate, which includes assets both inside of probate (valid will offered to the court) and outside of probate (no will or passed through a different instrument such as a payable on the death certificate).

For example, if a married individual had a will leaving everything to her daughter from a prior marriage (probate assets). She also had a retirement account that listed the daughter as a beneficiary (non-probate assets). The surviving spouse’s elective share would include one-third of the total value of both the probate and non-probate asset. This may even include gifts given to one or more parties before the decedent spouse’s death.

As a result of the elective share, dependent upon the above-identified circumstances, the surviving spouse who was disinherited can obtain either one-half or one-third of the augmented estate. Therefore, in most cases, with exceptions including but not limited to legal defenses such as abandonment and Slayer statute, it is doubtful for an individual to disinherit a surviving spouse entirely.

Further issues and complications arise as a surviving spouse may also take several other elections, including the family allowance exemptions and exempt property exemption. Due to the complex options available to both the decedent before death and the disinherited, surviving spouse, the Attorneys at McClanahan Powers strongly advise that you schedule a consultation to discuss your options to proceed.

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