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| Erin A. Smith, Esq. |
This year, the Virginia Assembly adopted new rules with respect to Virginia’s augmented estate. The Augmented Estate Statue protects married couples from disinheriting each other by allowing the surviving spouse to make a claim against the decedent spouses’ estate for probate assets, non-probate assets, and even transfers of assets to third parties. These combined assets are considered the decedent’s augmented estate.
The philosophy behind the statute is that a spouse has a duty to support his or her spouse even at death. The changes in the statute modernize this view of statutory “support” in favor of a financial partnership theory. The amount that the spouse will receive depends on the number of years they were married.
Under the new law, the surviving spouse is still entitled to up to one half of the augmented estate, but what is considered the “marital share” depends on the duration of the parties’ marriage and ranges from 1.5% of the total augmented estate for a marriage of less than one year to a full 50% for a marriage of fifteen years or more.
There is a now a two-step process: the determination of the percentage of the marital-property portion which is dependent upon the number of years married, then, there’s a determination of the “elective share amount” which is always 50% of whatever that marital-property portion turns out to be.
The new statute also clarifies that the surviving spouse making an elective share claim may also claim a homestead allowance of $20,000.00, which is to be paid to the spouse first after expenses are paid.
Domestic relations and estate planning often intersect. After a divorce in Virginia, in determining the amount and duration of spousal support, courts look at a number of statutory factors including the years of marriage. The duration of the marriage is one of the key factors considered.
In a previous blog, I explained why a pre-nuptial agreement is a wise choice because you can make the decision about the disposition of your property in the event of divorce or death. Otherwise, the laws of the Commonwealth will make that decision for you.