Parker, Pollard, Wilton, and Peaden - Attorneys at Law

You Can Disinherit Your Children, But Not Your Spouse

Paula L. Peaden Written by:

The months following the death of a spouse can be a trying time. Already complicated family relationship issues may be further strained. Blended families can be particularly challenging. While children have no legal right to an inheritance, in the absence of a pre or post nuptial agreement a spouse has rights whether or not there is a will. Generally speaking, the provisions of a will control how the deceased spouse’s estate will be administered. However, Virginia law protects disinherited surviving spouses by giving them the option to take an “elective share” of an “augmented estate.”

The value of an augmented estate includes not only the deceased spouse’s estate, but also any of his or her assets that pass outside the probate estate, and certain transfers during his or her lifetime. The value of an augmented estate is decreased by any assets the surviving spouse received from the deceased spouse, either through probate or otherwise.

How much of the augmented estate is available to the surviving spouse depends on answers to the following questions. Does the deceased spouse have children from a prior marriage? If so, have they been legally adopted by the surviving spouse? Did the deceased spouse own or transfer any assets, or incur any liabilities, prior to death?

If the deceased spouse has no children from a prior marriage, the surviving spouse may elect to take half of the augmented estate. The same also applies if the deceased spouse has children from a prior marriage that were legally adopted by the surviving spouse. If the deceased spouse has children from a prior marriage that have not been legally adopted by the surviving spouse, the surviving spouse may only elect to take one third of the augmented estate.

While determining whether to take an elective share might sound like a simple task, probating a deceased spouse’s will can be a drawn-out and complicated process. However, in addition to an elective share, the surviving spouse may qualify for other elections, including family allowance and exempt property exemptions. There are strict time periods in which to make such elections. An experienced estate attorney can help a surviving spouse understand the complex options available to him or her, and protect and enforce his or her legal rights following the death of a spouse.