On January 1, 1991, the Virginia General Assembly enacted a new statute regarding the rights of a spouse in their deceased spouse’s estate. This statute introduced the concept of an “augmented estate.” What this meant was that when a husband or wife died, the surviving spouse had certain rights in their marital property defined as the augmented estate, even if the decedent had written a will or a trust designed to disinherit their spouse. The surviving spouse could simply file a claim in court for a share of the couple's augmented estate and could elect to take 1/3 of the augmented estate if there were children or ½ of the augmented estate if there were no children.
However, as of January 1, 2017, a new statute §64.2-300 of the Code of Virginia 1950, as amended, will radically change this concept. The Virginia General Assembly is modifying the augmented estate rules so that a surviving spouse has the right to demand a share of the deceased spouse’s estate based upon the length of the marriage. The legislature adopted a theory of economic partnership whereby the longer the marriage, the greater the interest of the surviving spouse. This would address the situation where a younger woman marrying a wealthy senior citizen who then died shortly after the marriage and claims a large part of their husband’s assets as part of the augmented estate.
In simple terms, under the new law, a spouse claiming an interest in their deceased spouse’s estate would be entitled to a share of the augmented estate based on the length of the marriage under a graduated scale from one year to 15 years. If the marriage was less than one year, the surviving spouse would be entitled to 3% of the deceased spouse’s share of the augmented estate, at 10 years, they would be entitled to 60 % and at 15 years or more, they would be entitled to 100% of the spouse’s augmented estate.
Joseph T. Buxton III is the founder of TrustBuilders Law Group, Buxton and Buxton, PC with offices in Yorktown, Williamsburg, Urbanna and Virginia Beach, VA.