Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.
Detailed Answer
Under Virginia law, when someone dies without a valid will, their estate passes by intestate succession under Virginia Code Title 64.2, Chapter 3 (Va. Code § 64.2-301 et seq.). A surviving spouse’s rights include both an intestate share in the estate and a statutory life estate interest (dower or curtesy) in real property. Virginia does not permit a surviving spouse to elect exclusively to receive a life estate instead of the intestate share.
Intestate Share of the Surviving Spouse
Virginia Code § 64.2-313 (Va. Code § 64.2-313) governs how much a spouse inherits outright. For example, if the decedent leaves a spouse and one child, the spouse takes the first $50,000 of the estate’s net value plus one-half of the balance. If there are no descendants or all descendants are also descendants of the surviving spouse, the spouse may inherit the entire estate.
Life Estate (Dower and Curtesy) Rights
Separately, a surviving spouse has a life estate right in one-third of the decedent’s real property (dower for a widow; curtesy for a widower) under Virginia Code § 64.2-311 (Va. Code § 64.2-311). This life estate vests automatically and cannot be traded or elected in place of the intestate share.
No Stand-Alone Election of Life Estate
Virginia law does not allow a spouse to decline their statutory intestate share in favor of taking only a life estate. Both rights coexist: the intestate share provides outright ownership of certain assets, and the life estate secures use of real property for the spouse’s lifetime.
Elective Share in a Will Context
Note that when a decedent dies with a will (testate), the surviving spouse can elect under Virginia Code § 64.2-304 (Va. Code § 64.2-304) to take one-third of the net probate estate instead of what the will provides. That right is distinct from intestate succession and yields a monetary share rather than a life estate.
Disclaiming Inheritance Rights
If a spouse wishes to refuse any portion of the inheritance—whether outright property or a life estate—they must file a timely written disclaimer under Virginia Code § 64.2-2703 (Va. Code § 64.2-2703). A valid disclaimer treats the disclaimed property as though the disclaimant predeceased the decedent.
Helpful Hints
- Review Virginia Code § 64.2-313 carefully to calculate your intestate share.
- Understand that dower/curtesy rights apply only to real property owned by the decedent at death.
- Filing a disclaimer is the only way to refuse any statutory right; informal renunciation is ineffective.
- Keep in mind potential tax consequences of disclaiming or retaining life estate interests.
- Consult a probate attorney to navigate filing requirements and deadlines precisely.