Spousal Elective Share Requirements in Virginia

At a glance

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).