Virginia: Spousal Elective Share Requirements

Requirements one by one

Governing law and eligible spouse

Virginia's current system is Article 1.1 of Chapter 3, which applies to
decedents dying on or after January 1, 2017. Virginia Code § 64.2-308.3 gives the right
to a surviving spouse when the decedent died domiciled in Virginia. If the
decedent was domiciled elsewhere, that domicile's law controls any elective
share in Virginia property.

The spouse must still be living when the election is filed. Under
§ 64.2-308.13, the spouse may act personally, through a conservator, or through
an agent authorized by a durable power of attorney. When a conservator or agent
acts for an incapacitated spouse, the court must place the unpaid portion
charged to the decedent's probate and nonprobate recipients into a support
trust. Section 64.2-308.14(E) separately bars a spouse whose willful desertion
or abandonment continued until the other spouse's death.

Share amount and marriage-length scale

The percentage has two steps. Virginia Code § 64.2-308.3 sets the elective share at
50% of the marital-property portion. Virginia Code § 64.2-308.4 then defines that
marital-property portion as a percentage of the augmented estate based on how
long the marriage lasted:

For example, after an eight-year marriage, the marital-property portion is 48%
of the augmented estate and the elective share is half of that portion, or 24%
of the augmented estate before the statute's satisfaction credits are applied.

Estate base and nonprobate property

The augmented estate is broader than the probate estate. Section 64.2-308.4
adds four components: the decedent's net probate estate, the decedent's
nonprobate transfers to others, nonprobate transfers to the surviving spouse,
and the surviving spouse's own property and nonprobate transfers.

Virginia Code §§ 64.2-308.5 and 64.2-308.6 bring in specified joint-survivorship
interests, POD and TOD accounts, life-insurance proceeds, property subject to
specified retained benefits or powers, and certain transfers made during the
two years before death. The definition of a presently exercisable general
power in § 64.2-308.1 includes a power to revoke or invade a trust's principal,
so qualifying revocable-trust property is not outside the calculation merely
because it avoids probate.

Virginia Code §§ 64.2-308.7 and 64.2-308.8 also count specified property passing to the
spouse and property the spouse already owns. That inclusion does not mean the
spouse hands over all separate property. It supplies the broader calculation
and the credits described in the payment rules.

Deductions, exclusions, and valuation

Virginia Code § 64.2-308.5 reduces the probate component by funeral and administration
expenses, homestead and family allowances, exempt property, and enforceable
claims. Virginia Code § 64.2-308.9 excludes transfers supported by adequate and full
consideration and transfers joined in or consented to in writing by the spouse.

The same section excludes qualifying property received by either spouse from a
third person without full consideration when it was maintained as separate
property. Enforceable claims against included property reduce its value.
Present and future interests, trusts, insurance options, annuities, pensions,
disability compensation, death benefits, and retirement arrangements are
valued under the section's commuted-value rules, while federal Social Security
is excluded. If two inclusion rules overlap, the property is counted once under
the rule yielding the greatest value.

Deadline, filing, notice, and withdrawal

Virginia uses two filings, not one. Under § 64.2-308.12(A), the spouse first
records an election no later than six months after the later of the will's
admission to probate or an administrator's qualification for an intestate
estate. The writing needs the acknowledgment or proof required for a recordable
instrument. The clerk records it in the will book, and the spouse must mail or
hand-deliver a copy to the personal representative within 30 days.

The spouse then has six months after filing that election to file a complaint
asking the court to determine the share. Within 30 days after the complaint,
the spouse must provide a copy to all known interested persons and to
distributees and augmented-estate recipients whose interests will be harmed.
If the complaint is filed more than 12 months after death, the decedent's
nonprobate transfers to others drop out of the augmented estate.

Article 1.1 states no extension procedure. The spouse may withdraw the election
at any time before the court enters a final determination. After notice and a
hearing, the court fixes the amount and orders payment or contribution.

Waiver and payment

Virginia Code § 64.2-308.14 permits a whole or partial waiver before or after marriage
through a written contract, agreement, or waiver signed by the spouse. A spouse
can defeat enforcement by proving involuntary execution, or by proving the
specified combination of unconscionability, missing fair disclosure, no valid
written disclosure waiver, and inadequate knowledge. Unless the document says
otherwise, broad all-rights language or a complete separation or divorce
property settlement also waives the elective share and the listed allowances.

Virginia Code §§ 64.2-308.10 and 64.2-308.11 apply property already received by the
spouse first. Any remaining amount is apportioned first among the probate estate
and specified nonprobate recipients, then among the remaining nonprobate
recipients. Original recipients and their donees can be personally liable when
the donees still hold the property or its proceeds. A liable recipient may
return the proportional property, pay cash, or provide other property if the
spouse agrees.

What trips people up

• The advertised 50% is not always 50% of the augmented estate. It is 50%
  of the marriage-length percentage. A marriage must reach 15 years before the
  marital-property portion reaches 100%.
• Recording the election does not finish the claim. The later complaint has
  its own six-month clock. Filing it more than 12 months after death removes the
  decedent's nonprobate transfers to others from the calculation.
• Property already going to the spouse is a payment credit. Will, intestacy,
  nonprobate, and spouse-owned marital-property amounts described in
  § 64.2-308.10 are applied before other recipients contribute.
• The allowances remain additional. Virginia Code § 64.2-308.3 says homestead
  allowance, exempt property, and family allowance are not charged against the
  elective-share amount. Virginia Code § 64.2-308.16 can also let the spouse occupy the
  principal family residence without the listed carrying charges until the
  residence rights are resolved.

Common questions

Does a revocable trust count? It can. Section 64.2-308.1 defines a presently
exercisable general power to include a power to revoke or invade trust
principal, and § 64.2-308.6 includes property subject to qualifying powers.

Can an agent file for an incapacitated spouse? Yes. Section 64.2-308.13
allows a conservator or durable-power-of-attorney agent to act, but the court
then places the unpaid probate and nonprobate contribution portion into a trust
for the spouse's support.

Can the spouse change course after filing? Yes. Section 64.2-308.12 permits
withdrawal before the court enters its final determination; withdrawal
extinguishes that election.

What if the decedent lived outside Virginia? Section 64.2-308.3 says the
law of the decedent's domicile at death governs any elective-share right in
Virginia property.

Statutes and sources

• Va. Code §§ 64.2-308.1 through 64.2-308.17 — current Article 1.1 governing
  the post-2016 elective share, including eligibility, percentage, augmented
  estate, valuation, filing, waiver, payment, and residence protection.
  Official Article 1.1 text
  (accessed 2026-08-02; official compilation dated August 1, 2026).
• Virginia Code 2026 Updates, Title 64.2 — the official current-year change
  index lists no amendment to Article 1.1.
  Official 2026 update index
  (accessed 2026-08-02).