When the spouse is cut out

The Legal Point

There is a saying in law that “a will speaks at death.” If that is true, some wills say quite a lot about how a person felt about his or her spouse. The meaning behind this maxim is that a will is not effective or operable until someone dies. At that moment, the will springs into action and declares to the world what the person’s wishes were for divvying up the estate. And sometimes people are shocked to see who was included—or for that matter, who was left out—for the estate plan. Imagine a spouse leaving absolutely nothing to a wife or a husband. It is especially troubling when the wife or husband never sensed any resentment or animosity during the marriage, only to find out that the spouse left no provision for that person in the will. Talk about being passive aggressive.

Of course, this can occur for all types of reasons and not just a vengeful spouse who wants to give a slap in the face beyond the grave. Sometimes a person remarries and fails to make a new will. Or sometimes the person gets bad advice in the planning or drafting of the will. Rest assured, the law in Virginia provides a remedy for this. Attempting to disinherit your spouse can result in a tidy lawsuit against the estate. 

As fellow Oyster Pointerian and prominent wills and estates attorney Philip Hatchett is fond of saying: “Inheritance by a child is a privilege; inheritance by a spouse is a right.” And the law in Virginia provides a way to enforce that right. 

The Virginia Code provides for four types of claims that can be asserted: elective share, family allowance, homestead allowance and a claim for what is known as exempt property. Each of these is designed to put money and property into the hands of the spouse. 

The elective share claim acts as a clawback on money or property that was left to someone else (not the spouse). Most all transfers can be unwound and pulled back into what is called the “augmented estate.” For example, if Mr. Heartless dies with a will that leaves nothing for Mrs. Heartless, but rather leaves everything to his son, the wife can pull those amounts back into the augmented estate. Or, suppose that the majority of Mr. Heartless’ money was in accounts that named his son, or worse yet, his mistress, as the payable-on-death beneficiary. Those too can be pulled back in. Once the augmented estate has been funded, the spouse can claim and receive a percentage based upon how long they were married. Fifteen years or longer entitles the spouse to 50 percent. The percentages are less for fewer years and the Code section has a chart. 

The family allowance entitles the spouse to $24,000. This claim has priority over all other claims to the estate. In other words, the spouse goes to the front of the line. 

The homestead allowance grants an additional $20,000 to the spouse. Again, this claim takes priority. 

There is also a claim for “exempt property,” which means that the spouse is entitled to $20,000 of the value of household furniture, automobiles, furnishings, appliances and personal property of the decedent. 

What is more, all of these claims are cumulative. The spouse does not have to pick one versus another; they all stack up. The elective share claim must be filed in the Clerk’s Office of the Circuit Court within six months from the date that the will was admitted to probate or from the date that someone qualified as administrator of an intestate estate (meaning, the person died without a will). The remaining claims (family allowance, homestead and exempt property) must be filed within one year from the date of death.

Without question, cutting your spouse out of your estate will lead to more court filings, hassles and drama after your passing. It is always sad to see someone leave litigation in the wake after passing away. So, for any spouse who feels that he or she got the proverbial “short-end” when their husband or wife died, take heart. There is a solution and all is not lost. 

About Joe Verser 13 Articles
Joe Verser is a partner in the law firm of Heath, Overbey, Verser & Old, PLC (https://www.hovplc.com/). He regularly represents both commercial and residential contractors in disputes, as well as homeowners and project owners. He can be reached at jverser@hovplc.com or at 757-599-0734.

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