I was recently asked whether spouses can be disinherited in Virginia. I found this question quite amusing. While in this country parents may disinherit even their minor children (for whose well-being and very existence they bear responsibility), married couples may not disinherit each other. I find this quite ironic, given the 50% divorce rate. And it is my conviction that a good part of the other 50% would actually like to be divorced, too.

So the answer is “no, absent a valid premarital agreement”.

In fact, Virginia just enhanced spousal inheritance rights. Regardless of the dispositions of a valid Will, a spouse may inherit up to half of the so-called augmented estate.

Below the details:

The “augmented estate” is the sum of nearly all of the assets of the deceased spouse, not only the assets that pass by probate. So the augmented estate includes retirement accounts, brokerage accounts, assets in trust, and all other assets held with payable-on-death or transfer-on-death designations.

Calculating the augmented estates is quite complicated. The involved parties often disagree about which assets are to be included in the augmented estate. Moreover, some assets are difficult to value, such as partial interests in real estate or business enterprises.

Under Virginia law, a surviving spouse is entitled to a minimum amount (known as “the elective share”) of the decedent’s augmented share. This elective share may be claimed regardless of whether the deceased spouse died without a Will (intestate) or whether the Will contained provisions to the benefit of the surviving spouse.

The surviving spouse may choose the elective share instead of any legacy provided in the Will. This is known as “taking against the Will” and alters significantly the testamentary bequests.

For deaths occurring until December 31st, 2016, the elected share is one-half of the augmented estate if there are no surviving children or other descendants. If the decedent left surviving children or other descendants, the elective share of the spouse is one-third of the augmented estate.

In the case of decedents dying on or after January 1st, 2017, the elective share of the surviving spouse is calculated as a graduated percentage, factoring in both spouses’ assets and the length of their marriage. In a long marriage, the surviving spouse may be able to claim up to 50% of the marital property portion of the augmented estate.

In today’s world, when blended families are common, people may wish to ensure that the bulk of their estate goes to their children and would therefore prefer to avoid their spouses taking against the Will.

As mentioned above, the only way to circumvent spousal inheritance rights is through a valid premarital or marital agreement.