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Topic: How Much Do You Have to Leave Your Spouse


By Milton Babirak, JD, LLM      |      Babirak Carr, PC     |     Sterling, VA

Commonly, the estate plans for a married couple provide that on the first to die, the decedent will leave all or almost all of their assets to the surviving spouse. However, this is not always the case. Some couples have prenuptial agreements or even postnuptial agreements that provide otherwise. Such agreements have long been permitted in Virginia. In other cases, a spouse may want to leave a lesser amount or nothing at all to a surviving spouse. Virginia continues to have a public policy disfavoring the disinheritance of a spouse since it may leave a surviving spouse without assets.  As of January 1, 2017, Virginia has tightened its law on this topic. This topic may not only be of interest to spouses but it may be of interest to surviving children as well. Those children may receive more or less of a deceased parent’s estate depending on how much is bequeathed to the surviving spouse.


Prior Law; Augmented Estate Statute

Virginia had an augmented estate statute originally enacted in 1990. This statute was based on the “support” theory. The old law had many loopholes and there were ways to sidestep the old law, thereby leaving very little or nothing at all for a surviving spouse. Further, the support theory is in disfavor generally and a new “partnership” theory is gaining acceptance since it seems fairer.

New Law

Generally speaking, the new law will increase the amount passing to the surviving spouse in a long-term marriage where the deceased spouse held the marital assets disproportionately. Conversely, it will decrease the amount passing to the surviving spouse in a short-term marriage or where the surviving spouse held the marital assets equally or disproportionately. Now, the percentage received by the surviving spouse is a sliding scale between 3% (marriage for less than one year) and 100% (a marriage of fifteen or more years). Significantly, the augmented estate does not include property received by gift, will, transfer in trust and inheritances. Also, a spouse who willfully abandons or deserts the other spouse is barred from claiming under the statute.

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