CLIENT UPDATE: New Changes In Virginia Spousal Inheritance Rights

by Stephan J. Lipskis, Esq.

On March 1, 2016, Governor McAuliffe signed into law a significant amendment of Virginia’s “Elective Share” rules. An “Elective Share” is an amount a surviving spouse can elect to receive instead of the amount provided under the deceased spouse’s estate plan. For many years, the Elective Share has caused problems when individuals wanted to limit the inheritance of their spouse or place restrictions on their spouse’s use of the inheritance. Frequently, improper attempts at restricting the surviving spouse’s share left the deceased spouse’s estate subject to litigation and kept assets tied up in probate. Even when assets are designated to pass outside of probate, they must be accounted for in what is known as the “Augmented Estate” in order to determine the surviving spouse’s Elective Share.

A brief look at the old rule is critical to understanding the importance of the recent changes. Formerly, a surviving spouse was entitled to an Elective Share equal to a third of the deceased spouse’s Augmented Estate (if the deceased spouse had children) or half of the deceased spouse’s Augmented Estate (if the deceased spouse died intestate). The Augmented Estate includes almost all of the assets that the deceased spouse had an interest in at death, not only those assets passing by probate. This led to considerable problems in administering estates, because valuing partial interests and locating non-probate transfers creates a great deal of work and controversy. Elective share claims often would pull into court trusts that were created in order to maintain privacy and avoid probate, thus defeating one purpose of creating the trust. Non-probate transfers such as payable on death accounts or trusts have become more common and the need to reform the Elective Share rules has become more and more pressing.

The new rules provide clearer standards for determining the value of assets in the Augmented Estate and modify the surviving spouse’s interest based on the length of the marriage. An important aspect of the recent changes is that trusts can be used more effectively to prevent a spendthrift spouse from squandering their inheritance. Also, the old rule’s strict one half and one third entitlements (described above) are gone. Replacing the old standard is a fifty-percent elective share that fully vests upon 15 years of marriage. Prior to fifteen years of marriage the surviving spouse’s elective share vests in percentages from 3% (during the first year of marriage) to 92% (during the fourteenth year of marriage). The applicable percentage is multiplied by the 50% to determine the surviving spouse’s share of the Augmented Estate. Anyone concerned with either leaving the minimum necessary amount to their spouse or protecting their spouse from squandering their inheritance should have their estate plan reviewed.

These changes have a multitude of applications to our clients and may require changes to your current estate planning, long-term care, or estate administration goals. Fortunately, these changes are only effective for the estates of individuals passing on or after January 1, 2017, which allows an opportunity to plan ahead of their implementation. The elder law attorneys at Hook Law Center are available to review and discuss changes that may be needed as a result of this important change in Virginia trust and estate law.

Kit Kat

Ask Kit Kat – Japanese Monkeys

Hook Law Center:  Kit Kat, what can you tell us about the latest studies involving Japanese monkeys?

Kit Kat:  Well, there is some interesting information which has been recently published in Scientific Reports by researchers from Kyoto University’s Primate Research Institute. Julie Duboscq, Andrew J.J.MacIntosh, and others examined lice infestation and grooming patterns in about 20 female adult macaques, the red-faced monkeys which are common to Japan. The macaques are also known as snow monkeys, because they inhabit areas in which snow is common for many months of the year. No other animal primate lives in colder regions.

The research looked at the socialization of the macaques and the level of lice infestation. Socialization levels were defined as interaction with other macaques, such as grooming one another. The macaques who experienced more grooming had less lice, but only during winter and summer. Researchers theorize that is because these are the seasons when mating and delivery of offspring occur. Perhaps hormonal levels at these critical periods help to reduce the level of lice infestation. More research will need to occur to pinpoint exactly what is happening, but it does appear, that socialization, while it does carry some risks, has the benefit of keeping these macaques lice-resistant, for some periods of the year. Reducing lice infestation would certainly contribute to the overall health of these beautiful and exotic creatures.


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