3.4 The Augmented Estate

• Library: Estate Planning in Virginia (Virginia CLE) (2018 Ed.)

3.4 THE AUGMENTED ESTATE

3.401 Surviving Spouse's Right to Elect a Share of Decedent's Estate. In 1991, the elective share provision of the Virginia Code replaced dower, curtesy, and will renunciation under Virginia law. ²² In 2016, the elective share provisions of the Virginia Code were modified to make Virginia law more similar to the Revised Uniform Probate Code (RUPC). The modified rules apply to any surviving spouse of a decedent who dies on or after January 1, 2017. For surviving spouses who fall under the amended statute, the elective share is calculated as a graduated percentage, taking into account both spouses' assets and the length of marriage. The amount is no longer affected by the existence of descendants of the decedent.

3.402 Description and Timing. Under both the old and the new versions of the augmented estate statute, a surviving spouse may claim his or her elective share within six months from the later of the date of the admission of the will to probate or the qualification of the administrator. ²³ Whether the decedent dies testate or intestate, the surviving spouse may elect to receive a share of the augmented estate. If the decedent died before January 1, 2017 and was survived by children or their descendants, the spouse was entitled to one-third of the augmented estate; the surviving spouse would receive one-half of the augmented estate if the decedent was not survived by children or their descendants. ²⁴ Beginning in 2017, the surviving spouse became entitled to take a 50-percent interest in the marital property portion of the augmented estate, which is determined by multiplying the sum of all property included in the augmented estate by a graduated percentage between 3 and 100 percent based on the length of the marriage. ²⁵ Under prior law, the surviving spouse was also entitled to interest on the amount to which he or she is entitled from the date of the decedent's death until the date of satisfaction of the elective share. ²⁶ For the estates of decedents dying on or after January 1, 2017, the elective share is treated as a pecuniary bequest as it would be under the RUPC, ²⁷ so interest would not

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begin to run on any unsatisfied claim until the expiration of one year after the date on which the surviving spouse is entitled to receive the share, usually the testator's date of death. ²⁸

3.403 Included Property. ²⁹ For decedents who died before January 1, 2017, the augmented estate consists of:

1.	The estate passing by testate or intestate succession, less statutory claims, funeral and administration expenses (but not including transfer taxes), and debts;
2.	The value of property, other than tangible personal property received by gift and the proceeds thereof, that is "derived by" the surviving spouse from the decedent without full consideration in money or money's worth by any means other than testate or intestate succession if the surviving spouse owns or acquires the property at the death of the decedent or if the surviving spouse transferred the property to a person other than the decedent during the marriage and the property would have been includible in the surviving spouse's augmented estate had the surviving spouse predeceased the decedent; and
3.	The value of property transferred by the decedent during the marriage to any person other than a bona fide purchaser, if it is:
	a.	Transferred to or for the benefit of any person other than the surviving spouse, to the extent that the decedent retained a life estate in or a right to receive income from the transferred property; or
	b.	A power to revoke or to consume, invade, or dispose of the principal for his or her own benefit or if the transferred property is held at death by the decedent and another with the right of survivorship or if the

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aggregate values of transfers that were made by the decedent to or for the benefit of a donee within the calendar year of the decedent's death or any of the preceding five calendar

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