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Virginia Surviving Spouse Rights in Probate
Support GuideVirginia11 min read

Virginia Surviving Spouse Rights in Probate

Virginia surviving spouse rights: the augmented-estate elective share, plus the family allowance, exempt property, and homestead allowance.

By Settled Editorial

Virginia law protects a surviving spouse from being cut out of a deceased spouse's estate. Even when a will leaves the spouse little or nothing, the survivor can claim an elective share of the augmented estate, along with a family allowance, exempt property, and a homestead allowance. These rights exist regardless of what the will says, and several of them stack on top of one another. This guide explains each right, the dollar figures Virginia sets, and the deadlines that control them.

Overview of Spousal Rights

Virginia gives a surviving spouse several distinct protections, each with its own statute and its own dollar figure or formula:

  1. Elective share - a claim on 50% of the marital-property portion of the augmented estate
  2. Family allowance - up to $30,000 of support during administration
  3. Exempt property - up to $25,000 of household goods and vehicles
  4. Homestead allowance - a $25,000 floor that tops up a small inherited share
  5. Intestate share - what the spouse inherits when there is no valid will

These rights are separate. A surviving spouse can combine several of them, and the family allowance, exempt property, and homestead allowance are each in addition to the elective share. Virginia has no separate probate court. Estate administration runs through the Clerk of the Circuit Court in the county or independent city where the person lived, with a court-appointed Commissioner of Accounts reviewing the estate's accounts.

The Elective Share

Virginia does not use a flat percentage of the probate estate. Instead, a surviving spouse can claim an elective share of the augmented estate. The claim exists so a spouse cannot be disinherited by a will or by nonprobate transfers such as beneficiary designations and revocable trusts. The rules run from Va. Code 64.2-308.1 through 64.2-308.17.

The Augmented Estate

The augmented estate is a statutory pool, not just the probate estate. Under Va. Code 64.2-308.6, it combines the decedent's probate estate with certain nonprobate transfers and the surviving spouse's own property and entitlements. Virginia uses this wider pool as the base for the elective share so a spouse cannot be easily cut out through nonprobate arrangements.

How Much the Spouse Can Claim

The elective share is 50% of the marital-property portion of the augmented estate under Va. Code 64.2-308.3. The marital-property portion is not fixed. It grows with the length of the marriage, so a longer marriage produces a larger marital-property portion and a larger elective share. The exact marital-property percentage for a given marriage length is set by statute and changes across the length-of-marriage brackets, so confirm the current figure for your marriage length before relying on a number.

Separate From the Allowances

The elective share is separate from the family allowance, exempt property, and homestead allowance. Those three allowances are in addition to the elective share, not part of it. A spouse may need to weigh the elective share against what the will or intestacy already provides, because electing is a choice with its own math.

Family Allowance

During administration, the surviving spouse can claim a family allowance for support under Va. Code 64.2-309. It can be paid as a lump sum of up to $30,000 or as up to $2,500 per month for one year. The family allowance is in addition to what the spouse inherits and carries priority ahead of most estate claims. Our Virginia family, exempt property, and homestead allowances guide works through eligibility, the payment options, and how to claim it. This page covers only how the allowance fits alongside the elective share.

Exempt Property

The surviving spouse can also claim exempt property worth up to $25,000 in value over any security interests under Va. Code 64.2-310. This covers household furniture, automobiles, furnishings, appliances, and personal effects. If the qualifying items are worth less than $25,000, the spouse can claim other estate assets to make up the difference. Because the limit is measured over security interests, a financed car counts only for the equity above the loan balance. Exempt property is in addition to the inherited share and to the elective share.

Homestead Allowance

The homestead allowance is $25,000 under Va. Code 64.2-311. It works differently from the other two allowances. It is in lieu of what the spouse would otherwise take by will or intestacy, so it acts as a floor rather than a stacked bonus:

  • If the inherited share is more than $25,000, the homestead allowance adds nothing.
  • If the inherited share is less than $25,000, the allowance tops it up to $25,000.

The homestead allowance is still in addition to the elective share, the family allowance, and the exempt property. Do not confuse it with the Title 34 homestead exemption, which is a separate creditor protection a living householder claims by recording a homestead deed. They share a name but do different jobs.

Intestate Share

If the decedent left no valid will, the surviving spouse's share is set by Va. Code 64.2-200 and turns on one fact: whether the decedent left descendants who are not also the spouse's.

Family situationSurviving spouse
No surviving descendantsEntire estate
All descendants are shared with the spouseEntire estate
One or more descendants are not the spouse'sOne-third

When the one-third split applies, the remaining two-thirds passes to the decedent's children and their descendants, not only to the children from outside the marriage. The elective share and the allowances are analyzed separately from this intestate share. See the Virginia intestate succession guide for the full course of descents.

How the Rights Fit Together

A worked example shows how these rights combine. Say a will leaves the surviving spouse $10,000, and the estate also holds $25,000 of furniture and a paid-off car.

  • Exempt property. The spouse can claim up to $25,000 of the furniture and the car under Va. Code 64.2-310, on top of the $10,000 inheritance.
  • Family allowance. The spouse can claim up to $30,000 of support under Va. Code 64.2-309, also on top of the inheritance.
  • Homestead allowance. The $10,000 inheritance is below the $25,000 floor, so the homestead allowance under Va. Code 64.2-311 adds $15,000 to bring the spouse up to $25,000. It fills the gap rather than stacking a full $25,000 on top.
  • Elective share. Separately, the spouse can weigh an elective share of 50% of the marital-property portion of the augmented estate under Va. Code 64.2-308.3. If electing yields more than taking under the will, the spouse can elect against the will, and the three allowances still come on top of the elective share.

The takeaway is that the family allowance and exempt property add to what the spouse otherwise receives, the homestead allowance fills a gap up to its floor, and the elective share is a separate choice measured against the augmented estate. A spouse facing a complicated estate should compare all of these together.

When There Is No Surviving Spouse

The allowances do not disappear if the spouse has already died. Under Va. Code 64.2-310 and 64.2-311, the decedent's minor children can claim the exempt property and the homestead allowance in equal shares, and dependent children may share the family allowance under Va. Code 64.2-309. The elective share, by contrast, belongs to a surviving spouse and is not available to children.

Waiver and Forfeiture

A surviving spouse's rights are strong, but not absolute.

Waiver by agreement. A spouse can give up the elective share and other rights in a valid marital agreement, such as a premarital or postmarital contract. A waiver generally must be in writing and voluntary, and courts look at whether there was fair financial disclosure. Confirm the requirements for a valid waiver with a Virginia attorney before relying on one.

Divorce. A final divorce ends the marriage, so a former spouse is not a surviving spouse and has no elective share or allowance claim.

The slayer rule. A spouse barred by Virginia's Slayer Statute, Va. Code 64.2-2500 through 64.2-2511, is treated as having predeceased the decedent and cannot benefit from the estate.

Deadlines

The elective share is time-limited. Under Va. Code 64.2-308.12, the surviving spouse must make the election within six months after the later of the admission of the will to probate or the qualification of an administrator on an intestate estate. A complaint to determine the elective share must then be filed within six months after the election. If that complaint is filed more than 12 months after the date of death, certain nonprobate transfers may be excluded from the augmented estate. A court can extend these deadlines only in limited circumstances, so confirm your exact dates with the Clerk of the Circuit Court and claim early rather than late.

The family allowance, exempt property, and homestead allowance are claimed during estate administration and also carry statutory time limits. Confirm the current deadline with the Clerk of the Circuit Court or the Commissioner of Accounts before relying on it.

Frequently Asked Questions

Can I be disinherited by my spouse in Virginia?

Not fully. Even if the will leaves you nothing, you can claim the elective share of the augmented estate under Va. Code 64.2-308.3, plus the family allowance, exempt property, and homestead allowance. These rights exist apart from what the will says.

How much is the elective share in Virginia?

It is 50% of the marital-property portion of the augmented estate. The marital-property portion grows with the length of the marriage, so a longer marriage yields a larger share. Confirm the current percentage for your marriage length before relying on a number.

How long do I have to claim the elective share?

You must make the election within six months after the later of the will's admission to probate or the qualification of an administrator on an intestate estate, under Va. Code 64.2-308.12. A complaint to determine the share follows within six months after the election.

Are the allowances part of the elective share?

No. The family allowance, exempt property, and homestead allowance are in addition to the elective share. The homestead allowance offsets what you take by will or intestacy, but it does not reduce the elective share.

Practical Steps for a Surviving Spouse

The rights are only useful if you claim them on time and with the right paperwork. A few steps keep the options open:

  1. Ask for the estate filings. Request the will, the inventory, and the accounts filed with the Commissioner of Accounts so you can see what the estate holds.
  2. List the exempt property. Identify household furniture, automobiles, furnishings, appliances, and personal effects, and note any loans, since the $25,000 limit is measured over security interests.
  3. Compare your options. Weigh what the will or intestacy gives you against the elective share of the augmented estate, and remember the family allowance, exempt property, and homestead allowance sit on top of the elective share.
  4. Watch the six-month election window. The election runs from the later of the will's admission to probate or the qualification of an administrator, so calendar it early.
  5. Document values and liens. Record asset values, security interests, and dependent status before treating any item as available.
  6. Claim during administration. The allowances are claimed as part of settling the estate, so raise them with the Clerk of the Circuit Court or the Commissioner of Accounts rather than waiting until the estate closes.

Related Guides

Sources

This guide provides general information about Virginia surviving spouse rights. Individual circumstances vary, and local practice differs by county and independent city. Confirm anything that affects your situation with the Clerk of the Circuit Court, the Commissioner of Accounts, or a licensed Virginia attorney. It is not legal advice.

Information current as of July 1, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Virginia can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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