Disinheriting a Spouse in Virginia

Can a decedent disinherit a surviving spouse in Virginia?

The issue can arise where one spouse drafts an estate plan, using a will and/or trust, to leave all of their assets to a child or extended family member; thus, disinheriting his or her spouse. This leads to the questions of whether or not an individual can legally disinherit his or her spouse, and if so, can the surviving, disinherited spouse do anything about it when his or her spouse passes away? The simple answers, respectively, are, no, not really, or at least not entirely, and yes, the surviving, disinherited spouse has options.

Generally, in an intestate estate, which is an estate where there is no valid instrument prepared and legally executed by a decedent spouse (spouse who passes away), the surviving spouse is entitled to receive the entirety of the estate, so long as there are no children from outside of the marriage, including a prior marriage between the decedent spouse and a third person. In circumstances where there are children from outside of the marriage, which have not been legally adopted by the surviving spouse, a surviving spouse in an intestate estate is entitled to one-third of the intestate estate.

If a surviving spouse has been disinherited in an testate estate, which is an estate where there is a valid will instrument prepared, legally executed by the decedent spouse, and offered to the court for probate purposes, pursuant to Virginia law, a spouse is entitled to take an elective share of the estate. Generally, an elective share provides the surviving spouse the right to receive one-half of the estate in the event that there are no children from outside of the marriage, including a prior marriage between the decedent spouse and a third person. In circumstances where there are children from outside of the marriage, which have not been legally adopted by the spouse, the elective share provides the surviving spouse the right to receive one-third of the estate. The elective share considers the entire augmented estate, which includes assets both inside of probate (valid will offered to the court) and outside of probate (no will or passed through a different instrument such as a payable on death certificate).

For example, if a married individual had a will leaving everything to her daughter from a prior marriage (probate assets) and she also had a retirement account that listed the daughter as a beneficiary (non-probate assets), the surviving spouse’s elective share would include one-third of the total value of both the probate and non-probate assets. This may even include gifts that were given to one or more parties prior to the decedent spouse’s death.

As a result of the elective share, dependent upon the above identified circumstances, the surviving spouse who was disinherited has the ability to obtain either one-half or one-third of the augmented estate. Therefore, in most circumstances, with exceptions including but not limited to legal defenses such as abandonment and Slayer statute, it is extremely unlikely for an individual to entirely disinherit a surviving spouse.

Further issues and complications arise as a surviving spouse may also take a number of other elections, including the family allowance exemptions and exempt property exemption. Due to the complex options available to both the decedent prior to death and the disinherited, surviving spouse, the Virginia Wills Attorneys at McClanahan Powers strongly advise that you speak with a knowledgeable and experienced attorney to ensure that they are protecting and enforcing their legal rights.

Failing to Plan is Planning to Fail

What is the reason for an Estate Plan and why do Virginia Estate Planning Attorneys take this endeavor so seriously?

A common expression among estate planning attorneys is failing to plan, is planning to fail.  An Estate Plan helps ensure that every single thing that you have ever earned or collected in your entire life is being used to care for and protect the people you care most about.  Estate planning attorneys use their knowledge and expertise to devise strategies and craft documents that protect their client’s most precious people and possessions.

The first step in estate planning is to understand the fundamental documents that are involved.  For starters, estate plans are centered on a principal estate planning document.  This document typically consists of either a Will or a Revocable Living Trust, which is often simply referred to as a “Trust.”  These documents come in a variety of shapes and sizes; however, in one form or another, most individuals use either a Will or a Trust as the centerpiece of their estate plan, which will direct the majority of assets in their estate to their beneficiaries and heirs.

A Virginia Wills Lawyer can assist clients in determining what principle document is right for them, whether that is a Will or a Trust.  They can also assist you in determining whether or not any additional estate documents would be beneficial, such as a Durable Power of Attorney or a Healthcare Directive.  For some people it may be as simple as explaining and educating them to what their options may be so that they can make an informed decision.  The vast majority of Virginia Wills Lawyers are willing to donate their time to clients by offering a free consultation to provide clients with some legal guidance and an understanding of what options are available to them.

Our Virginia wills attorneys take estate planning very seriously and believe that it is their obligation to educate people about estates, their options, and how best to protect their loved ones.  There are plenty of issues and questions to navigate in estate planning, whether its inheritance tax, estate tax, why a will, why a trust, or why a power of attorney.  The best way to begin to understand is by learning about these documents.  We hope that our estate planning blog will assist you in learning about the importance of estate planning and understanding the documents and options available for your use.

“When planning for a year, plant corn.  When planning for a decade, plant trees.  When planning for life, train and educate people.” 

Welcome and Thank You from the Virginia Wills Lawyers at McClanahan Powers.