At the death of the first spouse, Virginia law allows the surviving spouse to claim his or her elective share of the decedent’s augmented estate, even if the decedent had a will that did not provide for the spouse. In the past, the amount of the elective share was a fixed amount, regardless how long a couple was married. A surviving spouse, whether married for one year or twenty years, could claim 1/2 of the decedent’s augmented estate if there were no children or 1/3 of the augmented estate if there were children.

Beginning January 1, 2017, Virginia has drastically changed these rules, taking into account both spouses’ assets and the length of the marriage when determining a surviving spouse’s elective share amount. Under this new structure, assets of the surviving spouse, not just the deceased spouse, are now taken into consideration when calculating the augmented estate. In addition, the amount of the elective share is changed to a graduated percentage based on years of the marriage.

The decision whether or not to claim the elective share, as well as the calculation of the augmented estate and the elective share amount can be complicated. Consult with an attorney to learn how the changes may affect you.