Currently, whether or not the deceased spouse had a will or left anything to the surviving spouse in the will, the surviving spouse may elect a share in the deceased spouse's augmented estate.
The distinction between tangible personal property and intangible personal property plays a key role in the augmented estate. Tangible personal property means items that can be touched and have a physical existence, but not including land, buildings or things attached to land. A chair or pencil is tangible personal property. Stocks, bonds, cash, and promissory notes are intangible personal property.
The augmented estate is all property passing by will or by law where persons die intestate (without a will) (see VCE Publication 448-078 on Intestacy), to which is added the following:
The augmented estate, therefore, includes items such as the proceeds of life insurance policies, which are not generally considered part of the deceased's probate estate (see VCE Publication 448-067 on Probate).
The following are not included in the augmented estate:
If the surviving spouse wishes to claim the elective share in the augmented estate, he/she must file a claim with the court within 6 months of the date of the deceased spouse's death. If the election is made, the surviving spouse is entitled to 1/3 of the augmented estate if the deceased spouse left surviving children, grandchildren, great grandchildren, or other direct lineal descendants. If no children, grandchildren or great grandchildren, or other direct lineal descendants survive, the surviving spouse is entitled to 1/2 of the augmented estate. The remainder of the property of the estate, after satisfaction of the elective share, passes under the will or by intestacy to someone other than the spouse.
First, the total dollar value of the augmented estate is calculated. Next, the value of the surviving spouse's share is computed. Then, the value of augmented estate property that the surviving spouse already holds (whether received by gift or by reason of the death of the deceased spouse) is subtracted to give the net amount due to the surviving spouse.
For example, if the surviving spouse received the family home by right of survivorship, then the value of the family home is subtracted from the amount due under the augmented estate rules. The remaining property due to the spouse is taken so as to apportion the liability among the recipients of the augmented estate in proportion to the value of their interests. For example, if the value of the augmented estate is $1,000,000, and cousin Billy received $333,333 worth of property from the augmented estate, cousin Billy must contribute 1/3 of the cash or property necessary to give the surviving spouse his/her elective share.
The only persons who must contribute to the elective share of the surviving spouse are:
No one else must contribute money or property to make up the elective share. Even if someone makes a payment or transfers an item of property or other benefit to any person with actual knowledge that a surviving spouse has claimed an elective share in the decedent's estate, that person is not required to reimburse the estate to make up the elective share.
After the surviving spouse has filed a claim for an elective share, the surviving spouse, the deceased spouse's executor or personal representative, or any party in interest may petition the court and ask the court to determine the amount of the elective share. In addition, the court determines who must contribute to the elective share and in what amounts.
If a husband or wife willfully deserts or abandons his/her spouse and the desertion or abandonment continues until the death of the spouse, the deserting spouse may not claim an elective share. The deserting spouse also may not receive any property except under the will of the deceased spouse. If someone alleges desertion or abandonment, the desertion or abandonment must be proven to the satisfaction of the appropriate court.
Three exceptions exist to this rule. First, if someone defrauds a parent into leaving property to someone other than a child, the will may be overturned. For example, your cousin Billy tells your mother to sign a paper entering a contest to win a free television. The paper is actually a will leaving all of your mother's property to cousin Billy. Billy defrauded your mother. The "will" would be invalidated.
Secondly, if someone exercised improper (or in legal jargon "undue") influence over a parent, resulting in a will that disinherits the children, such a will may be invalidated by the court. For example, cousin Billy convinces your mother to visit a lawyer to draw up a will. Cousin Billy has been spending a lot of time with your mother since she won the lottery. Cousin Billy drives your mother to the attorney's office. During the trip, he discusses how wonderful it would be to leave her property to him, since he has so many expenses. Cousin Billy sits in on the meeting between the attorney and your mother. Your mother leaves all of her property to cousin Billy. Cousin Billy may have exercised undue influence over your mother, and the will may be overturned.
Third, if a parent signs a will while incompetent (see VCE Publication 448-080 on Wills), then that will is not effective. In this case, as in the cases of fraud or undue influence, a court would invalidate the improper will. If the deceased parent has a prior will that has not been revoked, then the earlier will governs. If the deceased parent has no other valid will, the property will pass to the heirs at law. (See VCE Publication 448-080 on Wills and VCE Publication 448-078 on Intestate in this series for more information).
Children contemplating a challenge of a parent's will under these circumstances should be aware that such challenges are very difficult. The challenger of the will must prove his/her case, and proof is often extremely complicated. Courts place much importance on the right of each person to leave their property to whomever they choose.
|Blackacre||$250,000||owned jointly with right of survivorship with Spouse|
|Greenacre||$300,000||given to Daughter in 1996.|
|Red Acre||$150,000||inherited by Decedent in 1989, and maintained as separate property.|
|Gift of Vase||$50,000||to Virginia Tech in 1990, wife was not aware of gift.|
|Gift of Cash||$50,000||to church, Spouse co-signed, 1987.|
|Life insurance||$120,000||Son and Daughter named beneficiary.|
Value included in
|Blackacre (held by Spouse as survivor)||$250,000|
|Gift of vase to Virginia Tech||$50,000|
|Gift of cash to Church||$0|
|Life insurance Son and Daughter||$120,000|
The value of selected assets is added to the augmented estate. Flo receives the Blackacre, worth $250,000, since it was held as right of survivorship (see VCE Publication 448-082 on Real Estate). If Flo elects against the will, she can receive property valued at a total of $290,000, or an additional $40,000 worth of property ($290,000 (augmented estate share) less $250,000 (value of Blackacre, already received).
Children hold no right to inherit from their parents. If someone acts to prevent children from receiving the inheritance that their parents desire them to receive, then, under limited circumstances, children may have a court determine their rights.
If someone encounters a situation where children or a spouse may be entitled to contest or elect against a will, an attorney should be consulted. The rules governing these situations are very complex. The issues and calculations are very difficult. The gray areas overwhelm the few clear answers. Anyone involved in planning his/her estate should carefully consider spousal rights, and issues arising when children are omitted from the will or estate plan. Thoughtfulness and meticulous attention to detail during the estate planning process prevent legal battles at the death of the planner. More importantly, good planning will save the large financial and family costs that accrue in these legal battles.
Jesse J. Richardson, Jr. can be reached at (540) 231-7508 (phone); (540) 231- 3367 (facsimile); and firstname.lastname@example.org (email).
L. Leon Geyer can be reached at (540) 231-4528 (phone); (540) 231-7417 (facsimile); and email@example.com (email).
Reviewed by Leon Geyer, Professor, Agricultural and Applied Economics
Virginia Cooperative Extension materials are available for public use, reprint, or citation without further permission, provided the use includes credit to the author and to Virginia Cooperative Extension, Virginia Tech, and Virginia State University.
Issued in furtherance of Cooperative Extension work, Virginia Polytechnic Institute and State University, Virginia State University, and the U.S. Department of Agriculture cooperating. Edwin J. Jones, Director, Virginia Cooperative Extension, Virginia Tech, Blacksburg; M. Ray McKinnie, Interim Administrator, 1890 Extension Program, Virginia State University, Petersburg.
May 1, 2009