Skip to content
Oakclause

Spousal Elective Share Law in Virginia

In Virginia, a surviving spouse can elect 50% of the marital-property portion of the augmented estate, which grows from 3% to 100% of the augmented estate with the length of the marriage, within 6 months after the will is probated or an administrator qualifies.

Last checked . General information, not legal advice.

Virginia at a glance

Elective share
50% of marital-property portion of augmented estate
The marital-property portion is 3% of the augmented estate for marriages under 1 year, rising to 100% at 15 years or more, so the share reaches 50% of the augmented estate.
Deadline to elect
6 months after will probate or administrator qualifies
The election is recorded with the court clerk; a complaint to determine the share must follow within 6 months after the election.
Community property state
No
Not on the IRS list of community property states.

Sources

Last checked

The rules in Virginia

How much can a surviving spouse claim in Virginia if left out of the will?

Elective share in Virginia: 50% of marital-property portion of augmented estate. The marital-property portion is 3% of the augmented estate for marriages under 1 year, rising to 100% at 15 years or more, so the share reaches 50% of the augmented estate.

What is the deadline to claim the elective share in Virginia?

Deadline to elect in Virginia: 6 months after will probate or administrator qualifies. The election is recorded with the court clerk; a complaint to determine the share must follow within 6 months after the election.

Is Virginia a community property state?

No. Community property state in Virginia: no. Not on the IRS list of community property states.

Where do the Virginia spousal elective share laws come from?

The rules above come from Va. Code 64.2-308.3, Va. Code 64.2-308.4 and Va. Code 64.2-308.12. Each source is linked on this page. We last checked them in October 2026.

Good to know

These rules are in the article of the Virginia Code covering spouses of decedents dying on or after January 1, 2017.

What this means in practice

The election is not automatic. A surviving spouse who wants the elective share usually must file a written election with the probate court, and serve notice on the personal representative, before a deadline. Missing the deadline can mean losing the right to elect.

Taking the elective share often means giving up gifts under the will and sometimes other benefits. Comparing what the will provides against the statutory share, including any trusts, life insurance or joint accounts that may count toward the share, helps show whether an election makes sense.

Spouses can often waive elective share rights in a written prenuptial or postnuptial agreement signed with full disclosure. If a waiver is part of an estate plan, the will, trust and marital agreement should be drafted to work together, and a local attorney can confirm the formal requirements.

General information, not legal advice. Laws change, and cities can add their own rules, so check the current statute before you rely on it.