§ 64.2-306 — Charging spouse with the value of property received; liability of others for balance of elective share

Virginia § 64.2-306

• Jurisdiction: Virginia
• Title 64.2: WILLS, TRUSTS, AND FIDUCIARIES
• Subtitle II: WILLS AND DECEDENTS' ESTATES
• Ch. 3: RIGHTS OF MARRIED PERSONS
• Art. 1: ELECTIVE SHARE OF SURVIVING SPOUSE

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A. In determining the elective share, the value of property included in the augmented estate that passes or has passed to the surviving spouse, or that would have passed to the spouse but was disclaimed, is applied first to satisfy the elective share in order to reduce any contributions due from other recipients of transfers included in the augmented estate.

B. The recipients of the remaining property of the augmented estate are liable to contribute the balance of the elective share and any interest thereon in proportion to the value of their interests.

C. The only persons subject to contribution to make up the elective share are (i) an original transferee from or appointee of the decedent, and any subsequent gratuitous inter vivos donee or person claiming by will or intestate succession, to the extent such person has the property or its proceeds on or after the date of the decedent's death, and (ii) a fiduciary, as to the property under the fiduciary's control at or after the time a fiduciary receives notice that a surviving spouse has claimed an elective share in the decedent's estate. A corporate fiduciary shall not be considered to have notice until it receives notice at its address as shown in the decedent's estate papers in the clerk's office or, if there are no such papers or no address is shown therein, at the office of its registered agent.

No other party is subject to contribution to make up the elective share even though the party makes a payment or transfers an item of property or other benefit to any person with actual knowledge that a surviving spouse has claimed an elective share in the decedent's estate.

D. Upon the petition of the surviving spouse, the decedent's personal representative, or any party in interest, the court having jurisdiction over the administration of the decedent's estate shall determine the amount of the elective share and the ratable portion of the elective share attributable to each person liable to contribution. Such petition may be brought against fewer than all persons from whom relief could be sought, but no person is subject to contribution in any amount greater than that which he would have been if relief had been secured against all persons subject to contribution.

E. Within 30 days after the court's determination of the contributions due under subsection D becomes final and not subject to further appeal, any person liable to the surviving spouse for contribution may file with the court a written statement specifying any of the following methods for satisfying his contribution and interest liability:

1. Conveyance to the surviving spouse of a portion of the property included in the augmented estate equal in value to his liability on the date the contribution statement is filed, or if, on the date of filing, the value of the property included in the augmented estate is less than his liability, conveyance to the surviving spouse of the entire property included in the augmented estate in full satisfaction;

2. Payment of the value of his liability in cash or, upon agreement of the surviving spouse, other property; or

3. Partial conveyance and partial payment under subdivisions 1 and 2, provided that the value conveyed and paid is equal to his liability.

In the event a contribution statement is not filed within 30 days, the court shall enter an order specifying the method by which a person's liability to the surviving spouse shall be satisfied.

Legislative History

1990, c. 831, § 64.1-16.2; 1992, cc. 617, 647; 2007, c. 308; 2012, c. 614.