What the rule says
Virginia substantially revised its elective share framework in 2017, adopting a marriage-length sliding scale similar to North Carolina's (covered in nc_elective_share_marriage_length). Under Va. Code § 64.2-308.3, the elective share percentage of the augmented estate is:
- 3% when the marriage is less than 1 year - 6% when the marriage is 1 year but less than 2 years - 12% when the marriage is 2 years but less than 3 years - 18% when the marriage is 3 years but less than 4 years - 24% when the marriage is 4 years but less than 5 years - 30% when the marriage is 5 years but less than 6 years - 36% when the marriage is 6 years but less than 7 years - 42% when the marriage is 7 years but less than 8 years - 48% when the marriage is 8 years but less than 9 years - 50% when the marriage is 9 years but less than 10 years - 50% at 10 years or more
The sliding scale is more granular than North Carolina's (NC uses four breakpoints: 15%, 25%, 33%, 50%). Virginia uses ten breakpoints, producing finer differentiation by marriage length.
Like North Carolina, Virginia caps the elective share at 50%. Long marriages produce strong protection; short marriages produce minimal protection.
What is the augmented estate
The "augmented estate" under Va. Code § 64.2-308.4 is broader than just probate property. It includes:
- The decedent's net probate estate - The decedent's reclaimable estate — non-probate transfers including: - Property in revocable trusts - Joint accounts (decedent's contribution) - Property over which the decedent had a power to appoint or consume - Certain transfers within 2 years of death - Pension and retirement benefits to the extent the decedent had control - The surviving spouse's property and property derived from the decedent
The surviving spouse's own property and property already received from the decedent are included in the augmented estate calculation. The elective share is then reduced by what the surviving spouse already has, producing the net amount the spouse can claim from other beneficiaries.
What this means in practice
The Virginia elective share produces several distinctive scenarios:
- Late-life remarriage at age 75 with death 11 months later. Surviving spouse can claim 3% of the augmented estate. Minimal protection but reflects the very short marriage. - Mid-length marriage of 5 years. Surviving spouse can claim 30% — meaningful protection. - Long marriage of 12 years. Surviving spouse can claim 50% — among the highest in the country. - Marriage of 15 years. 50% maximum reached well before North Carolina's 15-year breakpoint.
Virginia's framework reaches 50% at 9-10 years, faster than North Carolina (which requires 15 years). For most established marriages, Virginia provides the maximum protection.
Procedural requirements
The surviving spouse must elect within specific deadlines:
- Election must be filed within 6 months after the will is admitted to probate or letters of administration are granted (Va. Code § 64.2-308.5) - Election is filed with the appropriate circuit court
Failure to elect within the deadline forfeits the right.
Waiver
The elective share can be waived through a properly executed agreement, typically a premarital or postmarital agreement. Va. Code § 64.2-308.10 governs waivers, requiring written form, voluntary execution, and reasonable disclosure of financial circumstances.
What you can do about it
For a surviving Virginia spouse:
1. Calculate the augmented estate. 2. Determine the applicable percentage based on marriage length. 3. File the election within 6 months of probate. 4. Engage a Virginia probate attorney.
For estate planners advising Virginia clients:
- Account for the marriage-length factor. - Use waivers in second marriages and late-life remarriages. - Coordinate with overall estate planning.
Who this affects most
Virginia's marriage-length elective share is most consequential for:
- Late-life remarriages where the short-marriage protections are limited - Surviving spouses of long marriages who reach the 50% maximum - Estate planners advising on Virginia-specific elective share consequences - Out-of-state advisors whose clients have moved to Virginia
Virginia's framework is among the more spouse-favorable nationally for established marriages — reaching 50% maximum protection faster than North Carolina's framework.