March 20, 2015
Can a decedent disinherit a surviving spouse in Virginia?
The issue can arise where one spouse drafts an estate plan, using a will and/or trust, to leave all of their assets to a child or extended family member; thus, disinheriting his or her spouse. This leads to the questions of whether or not an individual can legally disinherit his or her spouse, and if so, can the surviving, disinherited spouse do anything about it when his or her spouse passes away? The simple answers, respectively, are, no, not really, or at least not entirely, and yes, the surviving, disinherited spouse has options.
Generally, in an intestate estate, which is an estate where there is no valid instrument prepared and legally executed by a decedent spouse (spouse who passes away), the surviving spouse is entitled to receive the entirety of the estate, so long as there are no children from outside of the marriage, including a prior marriage between the decedent spouse and a third person. In circumstances where there are children from outside of the marriage, which have not been legally adopted by the surviving spouse, a surviving spouse in an intestate estate is entitled to one-third of the intestate estate.
If a surviving spouse has been disinherited in an testate estate, which is an estate where there is a valid will instrument prepared, legally executed by the decedent spouse, and offered to the court for probate purposes, pursuant to Virginia law, a spouse is entitled to take an elective share of the estate. Generally, an elective share provides the surviving spouse the right to receive one-half of the estate in the event that there are no children from outside of the marriage, including a prior marriage between the decedent spouse and a third person.
In circumstances where there are children from outside of the marriage, which have not been legally adopted by the spouse, the elective share provides the surviving spouse the right to receive one-third of the estate. The elective share considers the entire augmented estate, which includes assets both inside of probate (valid will offered to the court) and outside of probate (no will or passed through a different instrument such as a payable on death certificate).
For example, if a married individual had a will leaving everything to her daughter from a prior marriage (probate assets) and she also had a retirement account that listed the daughter as a beneficiary (non-probate assets), the surviving spouse’s elective share would include one-third of the total value of both the probate and non-probate assets. This may even include gifts that were given to one or more parties prior to the decedent spouse’s death.
As a result of the elective share, dependent upon the above identified circumstances, the surviving spouse who was disinherited has the ability to obtain either one-half or one-third of the augmented estate. Therefore, in most circumstances, with exceptions including but not limited to legal defenses such as abandonment and Slayer statute, it is extremely unlikely for an individual to entirely disinherit a surviving spouse.
Further issues and complications arise as a surviving spouse may also take a number of other elections, including the family allowance exemptions and exempt property exemption. Due to the complex options available to both the decedent prior to death and the disinherited, surviving spouse, the Attorneys at McClanahan Powers strongly advise that you schedule a consultation to discuss your options to proceed.