Present: Hassell, C.J., Keenan, Koontz, Lemons, Agee, and 

Goodwyn, JJ., and Lacy, S.J. 

MARRILL W. PURCE 

v. Record No. 062368 OPINION BY SENIOR JUSTICE 

 ELIZABETH B. LACY 

 January 11, 2008 

VANESSA C. PATTERSON 

FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY 

Joseph E. Spruill, Jr., Judge 

In this appeal, Marrill W. Purce asks us to reverse the 

judgment of the trial court holding that he willfully 

abandoned his wife, Dorothy M. Purce, who died on January 19, 

2005, and therefore, under Code § 64.1-16.3, was not entitled 

to an elective share of her augmented estate. 

FACTS 

 We recite the facts based on a written statement of facts 

signed by the trial court. Dorothy and Marrill were married 

in July 1988. Dorothy had many health problems throughout the 

marriage and, while the couple lived together, friends and 

neighbors often took Dorothy to doctors’ appointments, cleaned 

the home, and cooked meals. Dorothy’s daughter, Vanessa C. 

Patterson, testified that Marrill did not visit Dorothy in the 

hospital during her illnesses and did not take care of her 

when she returned home. 

Marrill and Dorothy had a tumultuous marriage. Dorothy 

complained to her daughter and friends of Marrill’s treatment 
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of her. In April 1997, Dorothy obtained a protective order 

against Marrill based on his physical abuse of her, and she 

renewed the order a few months later. The protective order 

expired in June 1998, and the parties resumed cohabitation. 

In October of 1998, Dorothy sought another protective order, 

claiming she was under severe stress because Marrill’s 

girlfriend was harassing her, Marrill was drinking and staying 

out late every night, and she was afraid that she might have a 

stroke. The court denied the protective order.

In June 2000, Dorothy and Marrill agreed that Dorothy 

would leave the marital residence. After the separation, in 

August 2000, Dorothy sought a third protective order, claiming 

Marrill had threatened to kill her; the petition was denied. 

Dorothy filed a fourth petition for a protective order in June 

2002, claiming among other things that Marrill hurt her arm 

and threatened her; however, she withdrew this petition. 

 Dorothy filed for a divorce in January 2003, identifying 

the grounds for the divorce as living separate and apart for 

more than one year. The divorce decree was never issued, and 

the parties remained legally married at the time of Dorothy’s 

death. 

 Dorothy brought into the marriage rental properties she 

owned. Marrill, on the other hand, was retired during most of 

the marriage. Marrill did not participate in the management 
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of the rental properties, and he did not provide any financial 

support to Dorothy after the separation. During her last 

illness, Dorothy lived with her daughter in New Jersey. 

Marrill did not know Dorothy was in New Jersey, nor did he 

visit, call, or otherwise communicate with her. 

DISCUSSION 

In this appeal, Marrill first asserts that in determining 

whether he abandoned his wife, the trial court erred in 

considering facts occurring subsequent to the couple’s agreedupon separation. Marrill argues that post-separation conduct 

is not relevant to whether one spouse abandoned the other. We 

disagree. 

Code § 64.1-16.3(A) specifically addresses the period of 

abandonment that is relevant to a claim for an elective share: 

If a husband or wife willfully deserts or abandons 

his or her spouse and such desertion or abandonment 

continues until the death of the spouse, the party 

who deserted the deceased spouse shall be barred of 

all interest in the estate of the other by intestate 

succession, elective share, exempt property, family 

allowance, and homestead allowance. 

(Emphasis added.) The clear language of this Code section 

requires a court to determine whether the willful desertion or 

abandonment continued “until the death of the spouse” and that 

determination is not limited to consideration of actions 

occurring prior to a separation, should one have occurred. 

“In construing a statute, we must apply its plain meaning, and 
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‘we are not free to add [to] language, nor to ignore language, 

contained in statutes.’ ” BBF, Inc. v. Alstom Power, Inc., 

274 Va. 326, 331, 645 S.E.2d 467, 469 (2007) (quoting SIGNAL 

Corp. v. Keane Fed. Sys., 265 Va. 38, 46, 574 S.E.2d 253, 257 

(2003)). Based on the statutory language recited above, we 

conclude that the trial court did not err in considering facts 

occurring subsequent to the separation in determining whether 

Marrill willfully abandoned Dorothy for purposes of 

entitlement to an elective share of her augmented estate. 

 Marrill’s remaining four assignments of error challenge 

the sufficiency of the evidence to support a finding of 

abandonment. Whether Marrill abandoned Dorothy is a mixed 

question of law and fact. Thus, “we give deference to the 

trial court's findings of fact and view the facts in the light 

most favorable to the prevailing party, but we review the 

trial court's application of the law to those facts de novo.” 

Collins v. First Union Nat'l Bank, 272 Va. 744, 749, 636 

S.E.2d 442, 446 (2006). 

The term “abandonment” is not defined in the statutes 

governing elective share claims. We agree with the parties 

that principles developed in domestic relations law relating 

to abandonment are helpful in determining the issue of 

abandonment under Code § 64.1-16.3. 
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In the domestic relations context, “abandonment” is 

generally used synonymously with “desertion.” This Court has 

defined desertion as “a breach of matrimonial duty – an actual 

breaking off of the matrimonial cohabitation coupled with an 

intent to desert in the mind of the deserting party.” 

Petachenko v. Petachenko, 232 Va. 296, 298-99, 350 S.E.2d 600, 

602 (1986). Domestic relations cases have considered 

“matrimonial duty” to include cooking, cleaning, support, and 

contributing to the well-being of the family. See Goodwyn v. 

Goodwyn, 222 Va. 53, 54-55, 278 S.E.2d 813-14 (1981); Fussell 

v. Fussell, 182 Va. 720, 722, 30 S.E.2d 555, 556 (1944). 

Mindful of these domestic relations cases, in resolving the 

issue in this case we will use the word “abandonment” to mean 

a termination of the normal indicia of a marital relationship 

combined with an intent to abandon the marital relationship. 

While the term “abandonment” is similarly defined for 

purposes of domestic relations and elective share matters, 

there are significant differences in the analysis of the 

evidence when resolving the issue in the domestic relations 

and elective share contexts. For example, as we have noted, 

the relevant time period for determining abandonment for 

purposes of Code § 64.1-16.3 extends to the time of the 

deceased spouse’s death and is not limited to the moment of 

separation, or the filing of a petition for divorce, as it is 
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when abandonment is the ground upon which a divorce is sought. 

Compare Sprott v. Sprott, 233 Va. 238, 242, 355 S.E.2d 881, 

883 (1987) (finding desertion by wife based on her actions 

leading to her departure from the marital home), Breschel v. 

Breschel, 221 Va. 208, 212, 269 S.E.2d 363, 366 (1980) 

(finding no desertion because wife was legally justified in 

leaving based on facts leading up to her departure), and

Hudgins v. Hudgins, 181 Va. 81, 87, 23 S.E.2d 774, 777 (1943) 

(“[T]he absenting of one spouse from the other after the 

institution and during the pendency of a suit for divorce 

. . . is not desertion in law.”), with Code § 64.1-16.3. A 

second distinction is the effect of the parties’ agreement to 

separate or to seek a divorce. In an elective share analysis, 

an agreed separation or petition for divorce is relevant 

evidence of the termination of cohabitation, but is not 

evidence which defeats a finding of willful abandonment. In 

contrast, such an agreed separation or divorce petition may 

preclude a claim of abandonment in a divorce action because a 

finding of abandonment in that context is based on fault which 

is inconsistent with parties agreeing to terminate 

cohabitation or to seek a divorce. With these distinctions in 

mind, we now turn to the evidence in this case. 

In this case, the mutual decision to cease cohabitation 

and Dorothy’s divorce petition based on living separately for 
7

more than a year implies that the termination of the marital 

relationship was not the product of willful abandonment but 

rather an agreement between the parties. As discussed above, 

however, this evidence is not dispositive in the context of an 

elective share claim. The relevant evidence is Marrill’s 

conduct and his intent. Here, the record shows that both 

before and after Dorothy and Marrill agreed to separate, 

Marrill’s conduct showed a lack of support for Dorothy and the 

marital relationship. While living together or apart, Marrill 

provided Dorothy with little or no support or care during her 

illnesses and recoveries. Financially, Dorothy brought her 

rental properties into the marriage and managed the properties 

alone while living with Marrill. Marrill did not contribute 

to Dorothy’s support in this regard. 

After the separation, Marrill apparently did not 

communicate with Dorothy in any meaningful way because he did 

not even know she was living in New Jersey and did not 

acknowledge her final illness in any way. He did not support 

Dorothy financially, emotionally, or physically. Although he 

testified that he did not want the marriage to end, the trier 

of fact was not required to believe this testimony; indeed, 

the trial court found Marrill’s testimony incredible. Nothing 

in the record showed Marrill tried or intended to reconcile 

with Dorothy. At the time of Dorothy’s death, Marrill had 
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ceased to perform any marital duties. Therefore, we conclude 

that the evidence is sufficient to support the trial court’s 

holding that Marrill abandoned Dorothy prior to and continuing 

until the time of her death under Code § 64.1-16.3.

Accordingly, we will affirm the judgment of the trial 

court that Marrill was not eligible for an elective share of 

Dorothy’s augmented estate. 

Affirmed.