Estate administration is the last thing you want to deal with after the loss of a spouse. The spouse’s death is not just a significant trauma, it also requires the surviving spouse to make several critical decisions regarding the administration of the deceased spouse’s estate. Ideally, the deceased spouse left a will or trust stating how to dispose of the property. Here are some considerations for surviving spouses.
Is probate necessary?
Probate refers to the legal process of transferring a deceased person’s property to the beneficiaries or heirs. Not all property is considered part of the probate estate, however. Many spouses own assets, such as their house, car or investment and bank accounts, joint with right of survivorship. These assets will pass to the surviving spouse directly without any need for probate. Similarly, if the surviving spouse is a designated beneficiary of certain assets, such as a life insurance policy or a retirement account, that property also does not require probate.
Virginia offers an expedited alternative to probate if the assets in the estate are under a specified value. Thus, the first thing to determine is whether probate with full administration is necessary or if a smaller, quicker and less expensive process might be available.
The surviving spouse’s rights under Virginia law
Virginia law allows a surviving spouse to make certain elections and claims against the deceased spouse’s estate. If the surviving spouse was disinherited or left little from the estate of the deceased spouse, Virginia law permits the surviving spouse to claim an “elective share” from the deceased spouse’s “augmented estate,” which includes both probate and many non-probate assets. The surviving spouse can also file statutory claims and allowances that have priority over creditor claims. By filing these claims and allowances, the surviving spouse can guarantee receiving some probate assets (to the extent they are available) and is not left without resources if the deceased spouse had significant debts in his or her own name.
Virginia also has special rules governing “omitted” spouses. A spouse is omitted when the deceased spouse made a will prior to marrying the surviving spouse and did not update it after the marriage. Under this circumstance, the law assumes that the failure to update the will after the marriage was an oversight and thus allows the omitted surviving spouse to claim the same share he or she would have had if the deceased spouse died without a will.
One thing to note about the elective share, statutory claims and allowances, and omitted spouse rules is that they can be contracted away by prior agreement between the spouses via a written prenuptial agreement signed before the marriage or a marital agreement signed during the marriage. Also, asserting the elective share or statutory claims rights is time sensitive.
For all of these reasons, it’s important for surviving spouses to work with an attorney familiar with probate law and the rights of surviving spouses.