Virginia funeral rights

Virginia Surviving Spouse Rights — Elective Share, Allowances, and the Deadline to Claim Them (2026)

By Oleg Kachko · Updated September 6, 2026

✓ Verified September 2026

Virginia Surviving Spouse Rights exist because a will cannot cut a husband or wife out entirely. Every state protects a widow or widower with a share they may claim regardless of what the will says, plus allowances that come off the top before creditors and other heirs.

This guide gives the Virginia answer in plain English: what the elective share is, the deadline to claim it, whether trusts and joint accounts count, the homestead, exempt-property and family allowances, what happens when the marriage came after the will, and what forfeits the rights. All facts are from Virginia law, verified as of September 2026.

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Virginia Surviving Spouse Rights: At a Glance

Here are the Virginia facts that decide most Virginia surviving spouse rights claims:

Elective share A surviving spouse may elect to take 50 percent of the value of the marital-property portion of the augmented estate under Va. Code § 64.2-308.3, for decedents dying on or after January 1, 2017. The marital-property portion is not the whole augmented estate — it is a percentage of it set by a sliding scale keyed to the length of the marriage under § 64.2-308.4, so the practical share ranges from a small slice of a short marriage up to 50 percent of the entire augmented estate at 15 years. The election is in addition to, not charged against, homestead allowance, exempt property, and family allowance.
Deadline to elect The written election must be made no later than 6 months after the later of (i) admission of the decedent’s will to probate or (ii) qualification of an administrator on an intestate estate, per Va. Code § 64.2-308.12. A copy must be provided to the personal representative within 30 days of filing. The surviving spouse must then file the complaint to determine the elective share no later than 6 months after the election is filed. If that complaint is filed more than 12 months after the death, non-probate transfers to others drop out of the augmented estate.
Counts non-probate assets (augmented estate) YES. Under Va. Code §§ 64.2-308.4 through 64.2-308.8, the augmented estate is the sum of four components: the decedent’s net probate estate (§ 64.2-308.5); the decedent’s non-probate transfers to others such as revocable trusts, survivorship/joint accounts, POD and TOD designations, and certain lifetime gifts (§ 64.2-308.6); the decedent’s non-probate transfers to the surviving spouse (§ 64.2-308.7); and the surviving spouse’s own property and non-probate transfers to others (§ 64.2-308.8). Counting the spouse’s own assets means a well-provided-for spouse may recover little or nothing.
Community property state NO. Virginia is a common-law (separate property) state, so there is no automatic one-half community interest at death. Protection for the surviving spouse comes instead from the elective share against the augmented estate under Va. Code § 64.2-308.3 and from the allowances in Article 2 of Chapter 3. Virginia does recognize community property brought in from another state under the Uniform Disposition of Community Property Rights at Death Act, Va. Code § 64.2-315 et seq.
Homestead allowance A surviving spouse of a decedent domiciled in Virginia is entitled to a homestead allowance of 25000 under Va. Code § 64.2-311. If there is no surviving spouse, each minor child takes a share of 25000 divided by the number of minor children. The homestead allowance has priority over all claims against the estate except the family allowance and the right to exempt property. Separately, Va. Code § 64.2-307 lets the surviving spouse hold and occupy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance until those rights are determined and satisfied by agreement or final decree.
Exempt property The surviving spouse is entitled to household furniture, automobiles, furnishings, appliances, and personal effects worth up to 25000 in excess of any security interests in that property, under Va. Code § 64.2-310. If the estate does not hold 25000 of such items, the spouse may take other estate assets to make up the shortfall. If there is no surviving spouse, the decedent’s minor children take in equal shares. The right to exempt property has priority over all claims against the estate except the family allowance.
Family allowance Under Va. Code § 64.2-309, the surviving spouse and the minor children the decedent was obligated to support are entitled to a reasonable allowance in money out of the estate for maintenance during administration. It may be paid as a lump sum not to exceed 24000, or in periodic installments not to exceed 2000 per month for one year. The allowance may not continue longer than one year if the estate is inadequate to discharge all allowed claims. The family allowance has first priority over all other claims against the estate.
Court / filing The circuit court of the county or city where the decedent’s will was admitted to probate or where an administrator qualified — Virginia has no separate probate court, and the circuit court clerk’s office handles probate and qualification. The complaint to determine the elective share is then filed in that same circuit court under Va. Code § 64.2-308.12. — The initial filing is the “election” (commonly styled a claim or notice of election to take an elective share), recorded by the clerk in the court’s will book after acknowledgment or proof under Va. Code § 64.2-308.12. It must be followed by a “complaint to determine the elective share” filed in the circuit court. Claims for family allowance, exempt property, and homestead allowance are made by a separate election under § 64.2-313.

Why the Will Cannot Disinherit a Spouse in Virginia

The law treats marriage as an economic partnership. A spouse who spent decades contributing to a household is not left to the mercy of a will written in anger, under pressure, or decades ago. In separate-property states the protection is the elective share: a fixed fraction of the estate the surviving spouse may take instead of whatever the will provides.

In community property states it is built in — half of everything acquired during the marriage already belongs to the survivor and never passes under the will at all. Virginia uses one of those two systems, and the table above says which.

The right is personal to the spouse and must be claimed. Nothing happens automatically: a surviving spouse who does nothing takes what the will gives, even if that is nothing. The election has a deadline, it is filed in the probate court, and it is the single Virginia surviving spouse rights fact that a grieving spouse most often learns too late.

The Virginia Elective Share

A surviving spouse may elect to take 50 percent of the value of the marital-property portion of the augmented estate under Va. Code § 64.2-308.3, for decedents dying on or after January 1, 2017.

The marital-property portion is not the whole augmented estate — it is a percentage of it set by a sliding scale keyed to the length of the marriage under § 64.2-308.4, so the practical share ranges from a small slice of a short marriage up to 50 percent of the entire augmented estate at 15 years.

The election is in addition to, not charged against, homestead allowance, exempt property, and family allowance.

The deadline: The written election must be made no later than 6 months after the later of (i) admission of the decedent’s will to probate or (ii) qualification of an administrator on an intestate estate, per Va. Code § 64.2-308.12. A copy must be provided to the personal representative within 30 days of filing.

The surviving spouse must then file the complaint to determine the elective share no later than 6 months after the election is filed. If that complaint is filed more than 12 months after the death, non-probate transfers to others drop out of the augmented estate.

What counts: YES. Under Va.

Code §§ 64.2-308.4 through 64.2-308.8, the augmented estate is the sum of four components: the decedent’s net probate estate (§ 64.2-308.5); the decedent’s non-probate transfers to others such as revocable trusts, survivorship/joint accounts, POD and TOD designations, and certain lifetime gifts (§ 64.2-308.6); the decedent’s non-probate transfers to the surviving spouse (§ 64.2-308.7); and the surviving spouse’s own property and non-probate transfers to others (§ 64.2-308.8).

Counting the spouse’s own assets means a well-provided-for spouse may recover little or nothing.

Community property: NO. Virginia is a common-law (separate property) state, so there is no automatic one-half community interest at death. Protection for the surviving spouse comes instead from the elective share against the augmented estate under Va. Code § 64.2-308.3 and from the allowances in Article 2 of Chapter 3.

Virginia does recognize community property brought in from another state under the Uniform Disposition of Community Property Rights at Death Act, Va. Code § 64.2-315 et seq.

Allowances the Spouse Gets on Top of the Will

Homestead: A surviving spouse of a decedent domiciled in Virginia is entitled to a homestead allowance of 25000 under Va. Code § 64.2-311. If there is no surviving spouse, each minor child takes a share of 25000 divided by the number of minor children. The homestead allowance has priority over all claims against the estate except the family allowance and the right to exempt property. Separately, Va.

Code § 64.2-307 lets the surviving spouse hold and occupy the principal family residence and curtilage without charge for rent, repairs, taxes, or insurance until those rights are determined and satisfied by agreement or final decree.

Exempt property: The surviving spouse is entitled to household furniture, automobiles, furnishings, appliances, and personal effects worth up to 25000 in excess of any security interests in that property, under Va. Code § 64.2-310. If the estate does not hold 25000 of such items, the spouse may take other estate assets to make up the shortfall. If there is no surviving spouse, the decedent’s minor children take in equal shares.

The right to exempt property has priority over all claims against the estate except the family allowance.

Family allowance: Under Va. Code § 64.2-309, the surviving spouse and the minor children the decedent was obligated to support are entitled to a reasonable allowance in money out of the estate for maintenance during administration. It may be paid as a lump sum not to exceed 24000, or in periodic installments not to exceed 2000 per month for one year.

The allowance may not continue longer than one year if the estate is inadequate to discharge all allowed claims. The family allowance has first priority over all other claims against the estate.

Married After the Will Was Signed

Under Va. Code § 64.2-422, if a testator fails to provide by will for a surviving spouse who married the testator after the will was executed, the omitted spouse receives the same share of the estate that spouse would have received had the decedent died intestate. The rule does not apply if it appears from the will, or from a valid premarital or marital agreement, that the omission was intentional.

This reaches probate assets only, not property passing by joint ownership or beneficiary designation.

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Waiver and Disqualification in Virginia

Under Va. Code § 64.2-308.14, the right of election and the rights to homestead allowance, exempt property, and family allowance may be waived wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.

A waiver is unenforceable if the spouse proves it was not executed voluntarily, or that fair and reasonable disclosure of the decedent’s property and financial obligations was not given, further disclosure was not expressly waived in writing, and the spouse did not and could not reasonably have had adequate knowledge of those assets.

Homestead allowance may be waived during life only by a marital or premarital agreement meeting the Premarital Agreement Act, Va. Code § 20-147 et seq.; § 64.2-314 governs waiver of the allowances.

What forfeits the rights: A spouse who willfully deserts or abandons the other spouse, where the desertion continues until the other spouse’s death, is barred from all interest in the decedent’s estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance, under Va. Code §§ 64.2-308 and 64.2-308.17.

A complete property settlement entered into after, or in anticipation of, separation or divorce operates as a waiver of all of these rights under § 64.2-308.14. A pending divorce alone does not end the rights; the marriage must be terminated by a final decree.

If there is no will: With no will, Va. Code § 64.2-200 gives the surviving spouse the entire intestate estate unless the decedent left descendants who are not also descendants of the surviving spouse, in which case the spouse takes one-third and those descendants take two-thirds. The Virginia dying-without-a-will guide linked below covers that in full.

Other Virginia rules: Virginia’s share is set by a sliding scale in Va.

Code § 64.2-308.4 that fixes the marital-property portion by years of marriage — 3 percent for under 1 year, 6 percent at 1 year, 12 percent at 2, 18 percent at 3, 24 percent at 4, 30 percent at 5, 36 percent at 6, 42 percent at 7, 48 percent at 8, 54 percent at 9, 60 percent at 10, 68 percent at 11,

then rising in further steps to 100 percent at 15 years or more; the elective share is 50 percent of that portion.

Elections for family allowance, exempt property, and homestead allowance must be made within one year of death under Va. Code § 64.2-313. Dower and curtesy were abolished for deaths on or after January 1, 1991 (Va. Code § 64.2-301). An election may be withdrawn any time before a final court determination.

Mistakes That Cost a Surviving Spouse in Virginia

The first mistake is waiting. The election to take the statutory share has a deadline that runs from death or from the will’s admission, and the probate court cannot extend it for a spouse who did not know. The second is assuming the will is the whole picture.

A spouse who was left “the house” may be entitled to considerably more under the Virginia surviving spouse rights rules — and may also be entitled to allowances the will never mentions.

The third mistake is signing something in the first weeks. A release, a family settlement, or a disclaimer offered by another heir can waive rights the spouse did not know they had. The last is overlooking a prenuptial agreement.

If one exists, it may have waived the elective share — but only if it met the state’s requirements for disclosure and fairness at the time, which is a question a lawyer should answer before anyone relies on it.

What to Expect When You Claim Virginia Surviving Spouse Rights

Claiming Virginia surviving spouse rights is a filing inside the probate case, not a separate lawsuit. The surviving spouse files the election and any allowance requests with the court, the personal representative calculates the estate the share is measured against, and the court resolves any dispute over what counts.

Where the will already gives the spouse more than the statutory share, the election is unnecessary and most spouses do not file one.

Two things surprise people. The first is how much depends on the calendar — the election deadline is short in some states and runs whether or not the spouse knew. The second is that the allowances are separate from the share and are paid first, ahead of creditors, which is often what keeps a surviving spouse in the home during the months the estate takes to settle.

You don’t have to do this alone

If you are settling a loved one’s estate in Virginia, your state’s probate court self-help center and free legal-aid offices can walk you through the process at no cost. For an active probate or a deadline, talk to a licensed probate attorney in your state.

Key Takeaways: Virginia Surviving Spouse Rights

  • The will cannot disinherit you: Virginia surviving spouse rights guarantee a share the spouse may claim no matter what the will says.
  • You must elect: Virginia surviving spouse rights are not automatic; the statutory share is claimed by a filing in the probate court.
  • The deadline is short: the election that secures Virginia surviving spouse rights runs from death or the will’s admission and cannot be extended for not knowing.
  • Allowances come first: the homestead, exempt-property, and family allowances under Virginia surviving spouse rights are paid before creditors and heirs.
  • Trusts may count: in augmented-estate states, Virginia surviving spouse rights reach assets placed in trusts and joint accounts, not only probate property.
  • Community property is different: where it applies, half is already the survivor’s, and Virginia surviving spouse rights are about the other half.
  • A late marriage changes the will: a spouse married after the will was signed usually takes an intestate share under Virginia surviving spouse rights.
  • Prenups can waive: Virginia surviving spouse rights can be given up in a prenuptial or postnuptial agreement, but only one that met the state’s disclosure rules.
  • Separation can forfeit: a pending divorce or abandonment can end Virginia surviving spouse rights in some states before the death.
  • Sign nothing early: a release or disclaimer offered by another heir can waive Virginia surviving spouse rights the spouse never knew about.
  • Compare before you elect: Virginia surviving spouse rights are worth claiming only when the statutory share exceeds what the will gives.
  • The intestate share is separate: when there is no will, Virginia surviving spouse rights are set by the intestacy rules on the companion guide.

Quick Answers: Virginia Surviving Spouse Rights

What are Virginia Surviving Spouse Rights if the will leaves the spouse nothing?

A statutory share — commonly a third to a half of the estate — plus allowances paid ahead of creditors. Virginia Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.

How long does a spouse have to claim Virginia Surviving Spouse Rights?

A fixed period after death or after the will is admitted, set by statute. Missing it forfeits the statutory share, which is the most common way Virginia surviving spouse rights are lost.

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Official Virginia Sources & Resources

This Virginia guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.

More Virginia Estate Guides

Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.

Estate planning? Make sure your life insurance is in order — see Life Insure Guide. Worried about Medicaid estate recovery? See Medicare Cover Guide. Divorced recently? Update your will and beneficiaries — see Divorce Help Guide.