Estate Planning: New Year, New Law

The Virginia legislature has passed new laws which impact estate planning for married people. The “elective share” statute provides a spouse with a share of the other spouse’s estate upon his death; it is a right descended from common law, which has existed for hundreds of years to protect a spouse from disinheritance. So, even if a wife executes a will leaving her entire estate to an adult child, the husband can still claim a percentage of her estate. For a spouse who dies before January 1, 2017, that percentage equals 1/3 of the estate if the decedent left surviving children or ½ of the estate if there are no children. For a spouse who dies after January 1, 2017, the percentage his or her spouse could claim equals up to 50% regardless of whether or not the decedent has any surviving children. See Virginia Code Ann. §64.2-308.2 (1950 as amended). The new law considers marriage as more of a financial partnership, as opposed to a union where one spouse may need to be protected. One key aspect of the law is the sliding scale for determining the elective share, based on the length of the parties’ marriage: Less than 1 year 3% 1 year but less than 2 years 6% 2 years but less than 3 years 12% 3 years but less than 4 years 18% 4 years but less than 5 years 24% 5 years but less than 6 years 30% 6 years but less than 7 years 36% 7 years but less than 8 years 42% 8 years but less than 9 years 48% 9 years but...