dcrodriguez/Code-of-Virginia huggingface dataset:
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-302. When and how elective share may be claimed by surviving spouse.
A. A surviving spouse may claim an elective share regardless of whether (i) any provision for the surviving spouse is made in the decedent's will or (ii) the decedent dies intestate.

B. The surviving spouse of a decedent who dies domiciled in the Commonwealth may claim an elective share in the decedent's augmented estate within six months from the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate. The claim to an elective share shall be made either in person before the court having jurisdiction over administration of the decedent's estate, or by a writing recorded in the court or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1.

C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside of the Commonwealth to take an elective share based upon the value of property in the Commonwealth is governed by the law of the decedent's domicile at death.

Code 1950, § 64-13; 1968, c. 656, § 64.1-13; 1990, c. 831; 1995, c. 211; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-303. Extension of time until after determination of action for construction of will or extent of augmented estate.
If (i) a will is of doubtful import as to the amount or value of the property the surviving spouse of the decedent is to receive thereunder or (ii) the composition or value of the augmented estate is uncertain, and an action to resolve such issues is pending, the court in which the action is pending shall, upon the application of the surviving spouse made within the six-month period set forth in § 64.2-302, enter an order extending the time within which the surviving spouse may make a claim for an elective share. Such additional period within which to make a claim for an elective share shall not exceed 90 days after a final order has been entered in such suit, either by a trial court or any appellate court to which it is appealed.

Code 1950, § 64-14; 1968, c. 656, § 64.1-14; 1990, c. 831; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-304. Rights upon claiming an elective share.
If a claim for an elective share is made, the surviving spouse is entitled to (i) one-third of the decedent's augmented estate if the decedent left surviving children or their descendants or (ii) one-half of the decedent's augmented estate if the decedent left no surviving children or their descendants. The surviving spouse is entitled to interest at the legal rate specified in § 6.2-301 from the date of the decedent's death to the date of satisfaction of the elective share.

Code 1950, § 64-16; 1968, c. 656, § 64.1-16; 1978, c. 647; 1986, c. 526; 1990, c. 831; 2012, c. 614.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-307. Rights in family residence.
Until the surviving spouse's rights in the principal family residence have been determined and satisfied by an agreement between the parties or a final court decree, in cases (i) where the principal family residence passes under the provisions of § 64.2-200 and the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, or (ii) where the surviving spouse claims an elective share in the decedent's augmented estate under this article, the surviving spouse may hold, occupy, and enjoy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance. If the surviving spouse is deprived of possession of the principal family residence and curtilage, upon the filing of a complaint for unlawful entry or detainer, he is entitled to recover possession of such residence and damages sustained by him by reason of such deprivation during the time he was so deprived. Nothing in this section shall be construed to impair the lien or delay the enforcement of such lien of the Commonwealth or any locality for the taxes assessed upon the property.

1990, c. 831, § 64.1-16.4; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308. Statutory rights barred by desertion or abandonment.
A. If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted the deceased spouse shall be barred of all interest in the decedent's estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.

B. If a parent willfully deserts or abandons his minor or incapacitated child and such desertion or abandonment continues until the death of the child, the parent shall be barred of all interest in the child's estate by intestate succession.

1990, c. 831, § 64.1-16.3; 1992, c. 795; 2012, c. 614.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.1. Applicability; definitions.
A. The provisions of this article shall apply to determining the elective share of a surviving spouse for decedents dying on or after January 1, 2017.

B. As used in this article, unless the context requires a different meaning:

"Decedent's non-probate transfers to others" means the amounts that are included in the augmented estate under § 64.2-308.6.

"Fractional interest in property held in joint tenancy with the right of survivorship," whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.

"Marriage," as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse.

"Non-adverse party" means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or non-exercise of the power that he possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.

"Power" or "power of appointment" includes a power to designate the beneficiary of a beneficiary designation.

"Presently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent, whether or not he then had the capacity to exercise the power, held a power to create a present or future interest in himself, his creditors, his estate, or creditors of his estate, and includes a power to revoke or invade the principal of a trust or other property arrangement.

"Property" includes values subject to a beneficiary designation.

"Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.

"Transfer," as it relates to a transfer by or of the decedent, includes (i) an exercise or release of a presently exercisable general power of appointment held by the decedent, (ii) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (iii) an exercise, release, or lapse of a general power of appointment that the decedent created in himself and of a power described in subdivision 2 b of § 64.2-308.6 that the decedent conferred on a non-adverse party.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.10. Sources from which elective share payable.
A. In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's non-probate transfers to others:

1. Amounts excluded from the augmented estate under subdivision B 1 of § 64.2-308.9 that passed to the surviving spouse and amounts that passed to the surviving spouse at the decedent's death pursuant to the decedent's exercise of a power of appointment over property not included in the augmented estate;

2. Amounts included in the augmented estate under § 64.2-308.5 that pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 64.2-308.7; and

3. The marital property portion of amounts included in the augmented estate under § 64.2-308.8.

B. The marital property portion under subdivision A 3 is computed by multiplying the value of the amounts included in the augmented estate under § 64.2-308.8 by the percentage of the augmented estate set forth in the schedule in subsection B of § 64.2-308.4 appropriate to the length of time the spouse and the decedent were married to each other.

C. If, after the application of subsection A, the elective share amount is not fully satisfied, amounts included in the decedent's net probate estate, other than assets passing to the surviving spouse by testate or intestate succession, and in the decedent's non-probate transfers to others under subdivisions 1, 2, and 3 b of § 64.2-308.6 are applied first to satisfy the unsatisfied balance of the elective share amount. The decedent's net probate estate and that portion of the decedent's non-probate transfers to others are so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the decedent's net probate estate and of that portion of the decedent's non-probate transfers to others in proportion to the value of their interests therein.

D. If, after the application of subsections A and C, the elective share amount is not fully satisfied, the remaining portion of the decedent's non-probate transfers to others is so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the remaining portion of the decedent's non-probate transfers to others in proportion to the value of their interests therein.

E. The unsatisfied balance of the elective share amount as determined under subsection C or D is treated as a general pecuniary bequest.

2016, cc. 187, 269; 2018, c. 301.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.11. Personal liability of recipients.
A. Only original recipients of the decedent's non-probate transfers to others, and the donees of the recipients of the decedent's non-probate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's elective share amount. A person liable to make contribution may choose to give up the proportional part of the decedent's non-probate transfers to him or to pay the value of the amount for which he is liable in cash, or, upon agreement of the surviving spouse, other property.

B. If any section or part of any section of this article is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent's non-probate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in § 64.2-308.10, to the person who would have been entitled to it were that section or part of that section not preempted.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.12. Proceeding for elective share; time limit.
A. The election by the surviving spouse of a decedent who dies domiciled in the Commonwealth must be made no later than six months after the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate, by a writing recorded in the court or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1. The clerk shall record such election in the will book of the court. A copy of such election shall be provided to the personal representative, if any, by regular U.S. mail or hand delivery within 30 days of filing.

B. The surviving spouse must file the complaint to determine the elective share no later than six months after the filing of the election as set forth in subsection A. No later than 30 days after the filing of the complaint, the surviving spouse must provide a copy of the complaint to all known persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The decedent's non-probate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the complaint is filed more than 12 months after the decedent's death.

C. Notwithstanding the provisions of § 8.01-380, the election for an elective share may be withdrawn by the surviving spouse at any time before entry of a final determination by the court and such election shall be extinguished.

D. After notice and hearing, the court shall determine the elective share amount, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 64.2-308.10 and 64.2-308.11. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than such person would have been under §§ 64.2-308.10 and 64.2-308.11 had relief been secured against all persons subject to contribution.

E. An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.13. Right of election personal to surviving spouse; incapacitated surviving spouse.
A. The right of election may be exercised only by or on behalf of a surviving spouse who is living when the election for the elective share is filed in the court under subsection A of § 64.2-308.12. If the election is not made by the surviving spouse personally, it may be made on the surviving spouse's behalf by his or her conservator or agent under the authority of a durable power of attorney.

B. If the election is made on behalf of a surviving spouse who is an incapacitated person, and the court enters an order determining the amounts due to the surviving spouse, the court must set aside that portion of the elective share amount due from the decedent's probate estate and recipients of the decedent's non-probate transfers to others under subsections C and D of § 64.2-308.10 and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by a conservator or agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms or such other terms as the court determines appropriate:

1. Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse's support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.

2. During the surviving spouse's incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.

3. Upon the surviving spouse's death, the trustee shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse's heirs under Chapter 2 (§ 64.2-200 et seq.).

4. The trust shall be treated as a testamentary trust subject to the provisions governing testamentary trustees under Title 64.2.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.14. Waiver of right to elect and of other rights; defenses.
A. The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.

B. A surviving spouse's waiver is not enforceable if the surviving spouse proves that:

1. The waiver was not executed voluntarily; or

2. The waiver was unconscionable when it was executed and before execution of the waiver because:

a. A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided;

b. Any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided was not voluntarily and expressly waived, in writing; and

c. The surviving spouse did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

C. An issue of unconscionability of a waiver is for decision by the court as a matter of law.

D. Unless it provides to the contrary, a waiver of all rights, or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to one spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

E. If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted or abandoned the deceased spouse shall be barred of all interest in the decedent's estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.15. Protection of payors and other third parties.
A. Although under § 64.2-308.6 a payment, item of property, or other benefit is included in the decedent's non-probate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice from the surviving spouse or spouse's representative as required by § 64.2-308.12, that a complaint for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice that a complaint for the elective share has been filed.

B. A written notice that a complaint for the elective share has been filed must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice that a complaint for the elective share has been filed, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate. The court shall hold the funds or item of property, and, upon its determination under subsection D of § 64.2-308.12, shall order disbursement in accordance with the determination. If no complaint is filed in the court within the specified time under subsection A of § 64.2-308.12 or, if filed, the election for an elective share is withdrawn under subsection C of § 64.2-308.12, the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited.

C. Upon complaint to the probate court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this article.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.16. Rights in family residence.
Until the surviving spouse's rights in the principal family residence have been determined and satisfied by an agreement between the parties or a final court decree, in cases (i) where the principal family residence passes under the provisions of § 64.2-200 and the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, or (ii) where the surviving spouse claims an elective share in the decedent's augmented estate under this article, the surviving spouse may hold, occupy, and enjoy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance. If the surviving spouse is deprived of possession of the principal family residence and curtilage, upon the filing of a complaint for unlawful entry or detainer, he is entitled to recover possession of such residence and damages sustained by him by reason of such deprivation during the time he was so deprived. Nothing in this section shall be construed to impair the lien or delay the enforcement of such lien of the Commonwealth or any locality for the taxes assessed upon the property.

2016, cc. 187, 269.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.17. Statutory rights barred by desertion or abandonment.
If a parent willfully deserts or abandons his minor or incapacitated child and such desertion or abandonment continues until the death of the child, the parent shall be barred of all interest in the child's estate by intestate succession.

2016, cc. 187, 269.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.2. Dower or curtesy abolished.
The interests of dower and curtesy are abolished. However, the abolition of dower and curtesy pursuant to this section shall not change or diminish the nature or right of (i) any dower or curtesy interest of a surviving spouse whose dower or curtesy vested prior to January 1, 1991, or (ii) a creditor or other interested third party in any real estate subject to a right of dower or curtesy.

The rights of all such parties, and the procedures for enforcing such rights, shall continue to be governed by the laws in force prior to January 1, 1991.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.3. Elective share amount; effect of election on statutory benefits; non-domiciliary.
A. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this article, to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.

B. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share amount.

C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

2016, cc. 187, 269.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.4. Composition of the augmented estate; marital property portion.
A. Subject to § 64.2-308.9, the value of the augmented estate, to the extent provided in §§ 64.2-308.5, 64.2-308.6, 64.2-308.7, and 64.2-308.8, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute:

1. The decedent's net probate estate;

2. The decedent's non-probate transfers to others;

3. The decedent's non-probate transfers to the surviving spouse; and

4. The surviving spouse's property and non-probate transfers to others.

B. The value of the marital-property portion of the augmented estate consists of the sum of the values of the four components of the augmented estate as determined under subsection A multiplied by the following percentage:

If the decedent and the spouse were married to each other: The percentage is:

a	Less than 1 year	3%
a	1 year but less than 2 years	6%
b	2 years but less than 3 years	12%
c	3 years but less than 4 years	18%
d	4 years but less than 5 years	24%
e	5 years but less than 6 years	30%
f	6 years but less than 7 years	36%
g	7 years but less than 8 years	42%
h	8 years but less than 9 years	48%
i	9 years but less than 10 years	54%
j	10 years but less than 11 years	60%
k	11 years but less than 12 years	68%
l	12 years but less than 13 years	76%
m	13 years but less than 14 years	84%
n	14 years but less than 15 years	92%
o	15 years or more	100%

2016, cc. 187, 269.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.5. Decedent's net probate estate.
The value of the augmented estate includes the value of the decedent's probate estate, reduced by funeral and administration expenses (excluding federal or state transfer taxes), homestead allowance, family allowances, exempt property, and enforceable claims.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.7. Decedent's non-probate transfers to the surviving spouse.
Excluding property passing to the surviving spouse under the federal social security system, the value of the augmented estate includes the value of the decedent's non-probate transfers to the decedent's surviving spouse, which consist of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including:

1. The decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant;

2. The decedent's ownership interest in property or accounts held in co-ownership registration with the right of survivorship, or with Payable on Death or Transfer on Death designations to the extent the decedent's ownership interest passed to the surviving spouse as surviving co-owner; and

3. All other property that would have been included in the augmented estate under subdivision 1 or 2 of § 64.2-308.6 had it passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-308.8. Surviving spouse's property and non-probate transfers to others.
A. Except to the extent included in the augmented estate under § 64.2-308.5 or 64.2-308.7, the value of the augmented estate includes the value of:

1. Property that was owned by the decedent's surviving spouse at the decedent's death, including:

a. The surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;

b. The surviving spouse's ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and

c. Property that passed to the surviving spouse by reason of the decedent's death, but not including the spouse's right to homestead allowance, family allowance, exempt property, or payments under the federal social security system.

2. Property that would have been included in the surviving spouse's non-probate transfers to others, other than the spouse's fractional and ownership interests included under subdivision 1 a or b, had the spouse been the decedent.

B. Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of subdivision A 1 a or b, the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of subdivision A 2, proceeds of insurance that would have been included in the spouse's non-probate transfers to others under subdivision 1 d of § 64.2-308.6 are not valued as if the spouse were deceased.

C. The value of property included under this section is reduced by enforceable claims against the surviving spouse.

2016, cc. 187, 269.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-309. Family allowance.
A. In addition to any other right or allowance under this article, upon the death of a decedent who was domiciled in the Commonwealth, the surviving spouse and minor children whom the decedent was obligated to support are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance shall not continue for longer than one year if the estate is inadequate to discharge all allowed claims. The family allowance may be paid as a lump sum not to exceed $30,000, or in periodic installments not to exceed $2,500 per month for one year. It is payable to the surviving spouse for the use of the surviving spouse and minor children or, if there is no surviving spouse, to the person having the care and custody of the minor children. If any minor child is not living with the surviving spouse, the family allowance may be made partially to the spouse and partially to the person having the care and custody of the child, as their needs may appear. If there are no minor children, the allowance is payable to the surviving spouse.

B. The family allowance has priority over all claims against the estate.

C. The family allowance is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share.

D. The death of any person entitled to a family allowance terminates the person's right to any allowance not yet paid.

1981, c. 580, §§ 64.1-151.1, 64.1-151.4; 1987, c. 222; 1990, c. 831; 1996, c. 549; 2001, c. 368; 2012, c. 614; 2014, c. 532; 2025, c. 148.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-310. Exempt property.
A. In addition to any other right or allowance under this article, the surviving spouse of a decedent who was domiciled in the Commonwealth is entitled from the estate to value not exceeding $25,000 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the minor children of the decedent are entitled in equal shares to such property of the same value. If the value of the exempt property selected in excess of any security interests therein is less than $25,000, or if there is not $25,000 worth of exempt property in the estate, the spouse or minor children are entitled to other assets of the estate, if any, to the extent necessary to make up the $25,000 value.

B. The right to exempt property and other assets of the estate needed to make up a deficiency of exempt property has priority over all claims against the estate, except the family allowance.

C. The right to exempt property is in addition to any benefit or share passing to the surviving spouse or minor children by the will of the decedent, by intestate succession, or by way of elective share.

1981, c. 580, § 64.1-151.2; 1990, c. 831; 1996, c. 549; 2001, c. 368; 2012, c. 614; 2014, c. 532; 2025, c. 148.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-311. Homestead allowance.
A. In addition to any other right or allowance under this article, a surviving spouse of a decedent who was domiciled in the Commonwealth is entitled to a homestead allowance of $25,000. If there is no surviving spouse, each minor child of the decedent is entitled to a homestead allowance amounting to $25,000, divided by the number of minor children.

B. The homestead allowance has priority over all claims against the estate, except the family allowance and the right to exempt property.

C. The homestead allowance is in lieu of any share passing to the surviving spouse or minor children by the decedent's will or by intestate succession; provided, however, if the amount passing to the surviving spouse and minor children by the decedent's will or by intestate succession is less than $25,000, then the surviving spouse or minor children are entitled to a homestead allowance in an amount that when added to the property passing to the surviving spouse and minor children by the decedent's will or by intestate succession, equals the sum of $25,000.

D. If the surviving spouse claims and receives an elective share of the decedent's estate under §§ 64.2-302 through 64.2-307, the surviving spouse shall not have the benefit of any homestead allowance. If the surviving spouse claims and receives an elective share of the decedent's estate under Article 1.1 (§ 64.2-308.1 et seq.), the homestead allowance shall be in addition to any benefit or share passing to the surviving spouse by way of elective share.

1981, c. 580, § 64.1-151.3; 1990, c. 831; 2001, c. 368; 2012, c. 614; 2014, c. 532; 2016, cc. 187, 269; 2017, cc. 32, 82; 2025, c. 148.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-312. Source, determination, and documentation of family allowance, exempt property, and homestead allowance; petition for relief.
A. Property specifically bequeathed or devised shall not be used to satisfy the right to exempt property and the homestead allowance if there are sufficient assets in the estate otherwise to satisfy such rights. Subject to this restriction, the surviving spouse or the guardian of the minor children may select property of the estate as exempt property and the homestead allowance. The personal representative may make these selections if the surviving spouse or the guardian of the minor children is unable or fails to do so within a reasonable time, or if there is no guardian of the minor children. The personal representative may execute a deed of distribution to establish the ownership of property taken as the homestead allowance or exempt property, which deed, if executed, shall (i) describe the property with reasonable certainty and (ii) state the value of each asset included therein. The personal representative may determine the family allowance in a lump sum or periodic installments in accordance with § 64.2-309. The personal representative may disburse funds of the estate in payment of the family allowance and in payment of any part of the exempt property or the homestead allowance that is payable in cash.

B. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the circuit court for appropriate relief, including the award of a family allowance that is larger or smaller than what the personal representative determined or could have determined. Such petition may be ex parte; provided, however, that the court in its discretion may require such notice to and the convening of interested parties as it may deem proper in each case.

1981, c. 580, § 64.1-151.4; 1996, c. 549; 2001, c. 368; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-313. When and how exempt property and allowances may be claimed.
Any election to take a family allowance, exempt property, or a homestead allowance shall be made within one year from the decedent's death. The election shall be made either in person before the court having jurisdiction over probate or administration of the decedent's estate, or by a writing recorded in the court, or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1.

1981, c. 580, § 64.1-151.5; 2012, c. 614.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-314. Waiver.
A. The right of a decedent's surviving spouse to a homestead allowance in the estate of a decedent as provided in § 64.2-311 may be waived during the decedent's lifetime only by execution of a marital or premarital agreement in accordance with Chapter 8 (§ 20-147 et seq.) of Title 20 or by execution of a waiver provided (i) the waiver is in writing, (ii) the language of the waiver mentions homestead allowance in conspicuous language, and (iii) the waiver has been signed by the surviving spouse.

B. The right to the family allowance and exempt property, as provided in §§ 64.2-309 and 64.2-310, may be waived during the decedent's lifetime only by execution of a marital or premarital agreement made in accordance with Chapter 8 (§ 20-147 et seq.) of Title 20.

1990, c. 831, § 64.1-151.6; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-315. Application.
This article applies to the disposition at death of the following property acquired by a married person:

1. All personal property, wherever situated:

a. Which was acquired as or became, and remained, community property under the laws of another jurisdiction;

b. Which, all or the proportionate part of that property, was acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or

c. Which is traceable to that community property;

2. All or the proportionate part of any real property situated in the Commonwealth which was acquired with the rents, issues or income of, the proceeds from, or in exchange for, property acquired as, or which became and remained, community property under the laws of another jurisdiction, or property traceable to that community property.

1982, c. 456, § 64.1-197; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-316. Presumptions.
In determining whether this article applies to specific property, the following rebuttable presumptions apply:

1. Property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property is presumed to have been acquired as, or to have become and remained, property to which this article applies; and

2. Real property situated in the Commonwealth and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form which created rights of survivorship, is presumed not to be property to which this article applies.

1982, c. 456, § 64.1-198; 2012, c. 614.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-317. Disposition upon death.
Upon death of a married person, one-half of the property to which this article applies is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of intestate succession of the Commonwealth. One-half of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of intestate succession of the Commonwealth. With respect to property to which this article applies, the decedent's one-half of the property is not subject to the surviving spouse's right to an elective share under § 64.2-302 or Article 1.1 (§ 64.2-308.1 et seq.), as applicable.

1982, c. 456, § 64.1-199; 1990, c. 831; 2012, c. 614; 2016, cc. 187, 269.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-318. Perfection of title of surviving spouse.
If the title to any property to which this article applies was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the commissioner of accounts. Neither the personal representative nor the court in which the decedent's estate is being administered has a duty to discover or attempt to discover whether property held by the decedent is property to which this article applies, unless a written demand is made by the surviving spouse or the spouse's successor in interest.

1982, c. 456, § 64.1-200; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-319. Perfection of title of personal representative, heir or devisee.
If the title to any property to which this article applies is held by the surviving spouse at the time of the decedent's death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which this article applies, unless a written demand is made by an heir, devisee, or creditor of the decedent.

1982, c. 456, § 64.1-201; 2012, c. 614.
Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-320. Purchaser for value or lender.
A. If a surviving spouse has apparent title to property to which this article applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the personal representative or an heir or devisee of the decedent.

B. If a personal representative or an heir or devisee of the decedent has apparent title to property to which this article applies, a purchaser for value or a lender taking a security interest in the property takes his interest in the property free of any rights of the surviving spouse.

C. A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly.

D. The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender.

1982, c. 456, § 64.1-202; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-321. Creditor's rights.
This article does not affect rights of creditors with respect to property to which this article applies.

1982, c. 456, § 64.1-203; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-322. Acts of married persons.
The provisions of this article do not prevent married persons from severing or altering their interests in property to which this article applies.

1982, c. 456, § 64.1-204; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-323. Limitations on testamentary disposition.
This article does not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.

1982, c. 456, § 64.1-205; 2012, c. 614.

Code of Virginia — Title 64.2 (Wills, Trusts, and Fiduciaries), Chapter 3 (Rights of Married Persons)
§ 64.2-324. Uniformity of application and construction.
This article shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states which enact it.

1982, c. 456, § 64.1-206; 2012, c. 614.