LEGAL GUIDE
Written by attorney Scott James Golightly | Apr 12, 2011

Can You Disinherit a Spouse in Your Will?

There may be situations when a person wants to disinherit a spouse. In Virginia, however, this may not be as simple as just cutting the spouse out of the will. To protect a surviving spouse, Virginia law allows him or her to claim an elective share in the deceased spouse's "augmented estate." The surviving spouse must make such an election within 6 months from date of opening probate of the will. A detailed discussion of what amounts to an "augmented estate" is beyond the scope of this article. In very basic terms, an "augmented estate" equals the customary probate assets of the deceased spouse (assets in the deceased spouse's name only), plus assets passing upon the deceased spouse’s death outside probate (jointly held property, etc.), plus certain transfers by the deceased spouse during his or her lifetime, minus assets received by the surviving spouse from the deceased spouse. As you can see, in this situation, the deceased's spouse's estate is increased or "augmented" to include assets over and above those that make up the customary probate estate. If the surviving spouse makes a claim for an elective share, he or she is entitled to receive one-third (1/3) of the deceased spouse's augmented estate if the deceased spouse is survived by children. If the deceased spouse does not have any surviving children, the surviving spouse is entitled to one-half (1/2) of the augmented estate. One should note that the right to claim an elective share is not available to the surviving spouse in every situation. For example, if the surviving spouse deserted or abandoned the deceased spouse, Virginia law prohibits or "bars" the surviving spouse from claiming the elective share. This area of the law can be quite complicated. Each situation is unique to its own set of facts and circumstances. If you are a spouse seeking to cut the other out of your estate plan, or you are a surviving spouse who has been cut out, you should seek an experienced estate-planning attorney to help guide you. Disclaimer: I am a Virginia attorney and only licensed in that state. This article is general in nature and should not be relied upon as legal advice. Nothing in this article creates an attorney-client relationship.

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