Present: All the Justices

JOHN R. CHAPPELL, EXECUTOR OF THE 

ESTATE OF CAROLE K. CHAPPELL 

v. Record No. 022966 OPINION BY JUSTICE ELIZABETH B. LACY 

 October 31, 2003 

WALTER H. PERKINS 

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY 

Glen Allen Tyler, Judge 

 In this appeal, John R. Chappell, Executor of the Estate 

of Carole K. Chappell (Estate), asks us to reverse the 

judgment of the trial court establishing the elective share of 

the surviving spouse, Walter H. Perkins, pursuant to Code 

§ 64.1-16.1. Because we conclude that the circuit court did 

not err in applying Code § 64.1-16.11 as it existed at the time 

of Carole's death, in placing the burden of proof on the 

Estate to establish that certain property should be excluded 

from Carole's augmented estate, and in including certain 

property in the augmented estate, we will affirm the judgment 

of the trial court. 

FACTS AND PROCEEDINGS

 Walter and Carole were married from 1988 until Carole's 

death in 1997. Both had children from prior marriages, but 

they had none together. Walter was not a beneficiary under 

Carole's will. 

 1 For convenience of reference, the current subsection 

numbering is used in this opinion. 
Walter timely filed a claim for his elective share of 

Carole's augmented estate pursuant to Code § 64.1-13. He 

subsequently filed a petition asking the Circuit Court of the 

County of Northampton to determine the amount of that share, 

asserting that the Estate improperly excluded certain property 

from the augmented estate.2

 The property at issue included two investment accounts 

and a parcel of real property known as the Elliotts Creek 

property, all held in Carole's name.3 The Estate asserted that 

the funds in the investment accounts were proceeds Carole 

received from her first husband's retirement program following 

his death, from her first husband's life insurance policy, and 

from the sale of their home. 

Walter and Carole purchased the Elliotts Creek property 

in 1989 as tenants by the entirety. In 1991, they jointly 

executed a deed of gift conveying the property solely to 

Carole in fee simple. In 1992, they built a residence on the 

property with funds from the sale of other jointly owned 

 2 The petition initially named the Estate and Carole's 

four children as respondents. The children did not file a 

response or make an appearance in the proceedings before the 

trial court. 

3

 The Estate also assigns error to the failure of the 

circuit court to exclude from the augmented estate certain 

bank accounts held solely in Carole's name. However, the 

Estate presented no argument regarding the bank accounts and 

we limit our consideration to the investment accounts and the 

Elliotts Creek property. 

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property, a construction loan secured by securities owned by 

Carole, and funds contributed by both Carole and Walter. 

Carole transferred the property to the Carole K. Chappell 

Revocable Living Trust in 1997. 

 Following an evidentiary hearing, the trial court held 

that the Estate, as the party urging the exclusions, bore the 

burden of establishing that property should be excluded from 

the augmented estate under Subsection B of Code § 64.1-16.1 

and that the provisions of Code § 64.1-16.1 in effect at the 

time of Carole's death applied in this case. Based on these 

holdings the trial court concluded that the investment 

accounts and the Elliotts Creek property should be included in 

Carole's augmented estate. The Estate challenges each of 

these holdings in this appeal. 

DISCUSSION

In 1991, the General Assembly replaced the former 

doctrines of dower and curtesy with a system of property 

rights for surviving spouses known as the augmented estate. 

Code §§ 64.1-13 through -16.4. The new system allows a 

surviving spouse to claim a statutory fraction of the 

decedent's augmented estate. At issue in this appeal is the 

application of Code § 64.1-16.1, the statute that establishes 

the content of a decedent's augmented estate. 

A. Burden of Proof 

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As a threshold matter, the Estate challenges the circuit 

court's ruling that the Estate had the burden of establishing 

that Carole's investment accounts and the Elliotts Creek 

property should be excluded from the augmented estate pursuant 

to Subsection B of Code § 64.1-16.1. Noting that the 

augmented estate statutes are silent with regard to burdens of 

proof and that this Court has not previously resolved this 

issue, the Estate suggests that the circuit court should have 

adopted a "prima facie case" approach based on which party has 

the "best available information" concerning the decedent's 

estate. That party would have the initial burden to establish 

the augmented estate and the amount of the elective share. 

Any challenger would carry the burden of providing evidence to 

support a change in the initial determination. We reject the 

Estate's proposal and find no error in the circuit court's 

refusal to adopt a system that shifts burdens of proof based 

on the locus of information in each case. 

The legislation defining the augmented estate begins with 

the value of the property in the decedent's probate estate. 

That value is increased by the value of certain property 

previously transferred by the decedent. Code § 64.1-16.1(A). 

The value of the augmented estate is then decreased by 

excluding the value of certain property identified in 

Subsection B of Code § 64.1-16.1. Predictably, litigation 

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over the contents of the augmented estate will ensue when the 

representatives of the estate and the surviving spouse cannot 

agree on the proper application of Code § 64.1-16.1. By 

definition, the surviving spouse will benefit from those 

provisions that increase the size of the augmented estate, and 

the beneficiaries or heirs will benefit from those provisions 

that decrease its size.4

The petition to establish the amount of the elective 

share may be filed by the surviving spouse, the decedent's 

personal representative, or any party in interest. Code 

§ 64.1-16.2(D). Regardless of who files the petition invoking 

judicial intervention, we conclude that the party seeking 

inclusion of property under Subsection A of Code § 64.1-16.1 

has the burden of proof under that subsection and the party 

seeking exclusion of property under Subsection B of that 

section carries the burden of establishing such exclusion. 

Accordingly, the circuit court did not err in placing on the 

Estate the burden to establish that the investment accounts 

and the Elliotts Creek property should be excluded from the 

augmented estate pursuant to Subsection B of Code § 64.1-16.1. 

B. The Investment Accounts 

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 The provisions of the augmented estate apply whether the 

decedent dies testate or intestate. Code § 64.1-13. 

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The Estate next asserts that, if the circuit court had 

properly applied Subsection B of Code § 64.1-16.1, the 

investment accounts would have been excluded from the 

augmented estate under subparagraph (ii) of that subsection. 

That subsection provides in pertinent part: 

B. Nothing herein shall cause to be included in 

the augmented estate . . . (ii) the value of any 

property, its income or proceeds, received by 

the decedent by gift, will, intestate 

succession, or any other method or form of 

transfer to the extent it is received without 

full consideration in money or money's worth, 

before or during the marriage to the surviving 

spouse, from a person other than the surviving 

spouse to the extent such property, income, or 

proceeds were maintained by the decedent as 

separate property[.] 

(Emphasis added.) 

The General Assembly added the italicized language to the 

statute in 1999, two years after Carole's death. The circuit 

court applied the subsection as it existed at the time of 

Carole's death, concluding that the 1999 amendment affected 

substantive rights and therefore could not be applied 

retroactively. Code § 1-16; Shiflet v. Eller, 228 Va. 115, 

120, 319 S.E.2d 750, 753 (1984). 

The Estate asserts that this holding was erroneous for 

two reasons. First, it contends that the 1999 amendment did 

not affect substantive rights. Code § 64.1-13, according to 

the Estate, provides the substantive right to claim the 

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elective share, and Code § 64.1-16.1 only prescribes the 

procedure for determining which property is to be included in 

the augmented estate. Therefore, the Estate concludes, the 

1999 amendment to Code § 64.1-16.1, like the section itself, 

affects only the procedure for determining the contents of the 

augmented estate and is not substantive in nature. We 

disagree. 

We have described a procedural statute as one prescribing 

methods of enforcing rights. Shiflet, 228 Va. at 120, 319 

S.E.2d at 753-54. Code § 64.1-16.1 does not prescribe a 

method of enforcing the right to an elective share of an 

augmented estate; it defines the content of an augmented 

estate. The surviving spouse is entitled to a specific 

interest in the augmented estate as defined by the terms of 

Code § 64.1-16.1 at the time of a decedent's death. A 

subsequent amendment that changes the elements of the 

augmented estate also changes the surviving spouse's interest. 

Such a change in a previously established interest is 

substantive, not procedural. 

The Estate goes on to argue that, even if Code § 64.1-

16.1 affects substantive rights, the 1999 amendment did not 

affect those rights, because that amendment merely clarified 

existing law. The Estate argues that the word "gift" 

contained in the subsection prior to 1999 included any 

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property received without full consideration and that the 1999 

amendment merely clarified existing law. Rules of statutory 

construction preclude adoption of the Estate's position. 

Legislation is presumed to effect a change in the law 

unless there is clear indication that the General Assembly 

intended that the legislation declare or explain existing law. 

Boyd v. Commonwealth, 216 Va. 16, 20, 215 S.E.2d 915, 918 

(1975) (per curiam). Nothing in the 1999 amendment indicates 

that the General Assembly enacted the amendment as a 

clarification of existing law. See 1997 Acts, ch. 565 

(stating that changes to Code § 8.01-249 "are declaratory of 

existing law"). 

Rules of statutory construction also assume that words in 

a statute are read according to their common meaning; however, 

if a term has a known legal definition, that definition will 

apply unless it is apparent that the legislature intended 

otherwise. Price v. Harrison, 72 Va. (31 Gratt.) 114, 117-18 

(1878). "Gift" is a commonly used legal term and there is 

nothing to indicate that the General Assembly intended that 

the term have some other or additional meaning in this 

statute. A "gift" requires donative capacity and intent, 

delivery, and acceptance. See generally Taylor v. Smith, 199 

Va. 871, 874, 102 S.E.2d 160, 162 (1958). The term does not 

include the mere receipt of property "without full 

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consideration in money or money's worth." Indeed, at oral 

argument, counsel for the Estate could not identify any 

instance in which the receipt of funds from an insurance 

policy, from a retirement plan, from the sale of a house, or 

by operation of law qualified as receipt of property by gift. 

For these reasons we conclude that the circuit court did 

not err in applying Code § 64.1-16.1 as it existed at the time 

of Carole's death in 1997. Furthermore, because there is no 

evidence in this record showing that the funds in the 

investment accounts came from a gift, a will, or intestate 

succession, the circuit court did not err in holding that the 

Estate failed to carry its burden to establish that investment 

accounts should be excluded from the augmented estate under 

Subsection B of Code § 64.1-16.1. 

C. The Elliotts Creek Property 

 Finally, the Estate asserts that the circuit court erred 

in concluding that the value of the Elliotts Creek property 

was part of Carole's augmented estate because Carole had not 

"transferred the property pursuant to Virginia Code § 64.1-

16.1(B)(i) prior to her death." The Estate argues that the 

transfer of the property by Carole and Walter to Carole in 

1991 was a transfer of property by Carole made with the 

written consent or joinder of Walter and therefore, that the 

value of the property should be excluded from Carole's 

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augmented estate under Code § 64.1-16.1(B)(i). The Estate's 

position is based on the literal application of subparagraph 

(B)(i) and the provisions of Code § 55-41. We reject the 

Estate's arguments. 

The provision at issue provides: 

B. Nothing herein shall cause to be included in 

the augmented estate (i) the value of the property 

transferred by the decedent during marriage with 

the written consent or joinder of the surviving 

spouse. 

The Estate argues that a plain reading of this subparagraph is 

that, once consent to the transfer of the property is made, 

the value of that property can never be included in the 

transferring spouse's estate. Such an application of the 

statutory provision leads to absurd results. For example, if 

the transferring spouse subsequently repurchases the 

transferred property, under the Estate's construction of 

Subsection (B)(i), that property could never be part of the 

transferring spouse's augmented estate, even though the 

property was part of the transferring spouse's probate estate 

because of the subsequent reacquisition. Accordingly, the 

provision eliminates value attached to a specific conveyance 

of property, not to specific property. 

The Estate's construction is also inconsistent with the 

purpose of the augmented estate legislation, which is to 

prevent one spouse from disinheriting the other by 

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transferring property prior to the transferor's death and 

thereby diminishing the transferor's estate. To achieve this 

purpose, the value of certain property transferred by the 

decedent during marriage is imputed to the decedent's 

augmented estate. Code § 64.1-16.1(A)(3). If, however, a 

spouse had agreed to the transfer, the value of the 

transferred property is not included in the transferring 

spouse's augmented estate. Code § 64.1-16.1(B)(i). This 

exception is based on principles of fairness. When a spouse 

agrees to a transfer of property that diminishes the 

transferor's estate, that spouse should not be allowed to 

reclaim the value of the transferred property in the 

transferring spouse's augmented estate. See J. William Gray, 

Jr., Virginia's Augmented Estate System: An Overview, 24 U. 

Rich. L. Rev. 513, 523 (1990). 

If a transfer does not remove the property from the 

transferring spouse's estate, the consent of the nontransferring spouse, while a consent to the transfer, is not a 

consent to any diminution in the estate by virtue of that 

transfer. Accordingly, we conclude that that subparagraph 

(B)(i) of Code § 64.1-16.1 applies when a spouse consents to a 

specific conveyance that removes the property from, or 

decreases the value of, the transferring spouse's estate. 

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We also reject the Estate's contention that Code § 55-41 

specifically provides that when a husband and wife join in a 

deed of conveyance, the provisions of Code § 64.1-16.1(B)(i) 

are satisfied. The Estate reads Code § 55-41 too broadly. 

 Code § 55-41 states in pertinent part: 

When a husband and his wife have signed and 

delivered a writing purporting to convey any 

estate, real or personal, such writing . . . 

shall . . . operate to manifest the spouse's 

written consent or joinder, as contemplated in 

Code § 64.1-16.1 to the transfer embraced therein 

. . . . [and] the writing passes from such spouse 

. . . all right, title and interest of every 

nature[.] 

This provision declares only that a signed and delivered 

writing in which both spouses convey property meets the 

requirement of a spouse's "written consent or joinder" in Code 

§ 64.1-16.1(B)(i). That statute does not address whether a 

specific conveyance is the type of transfer that requires 

exclusion of the property's value from the augmented estate of 

the transferring spouse under Subsection (B)(i). 

In this case, the transfer of the Elliotts Creek property 

to Carole in fee simple did not remove the property from, or 

decrease the value of, Carole's estate. Although consenting 

to that transfer, Walter did not consent to a decrease in the 

value of Carole's estate. Accordingly, the conveyance was not 

subject to Code § 64.1-16.1(B)(i) because it did not result in 

the diminution of Carole's estate and, therefore, the circuit 

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court did not err in including the Elliotts Creek property in 

Carole's augmented estate. 

For these reasons we affirm the judgment of the trial 

court. 

Affirmed.

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