Although much of estate planning is about the testator determining how they manage and control their assets during their lifetime and have them distributed after they pass, there are limits to their empowerment. One of these limits is the spousal right of election, which prevents the testator from totally disinheriting their spouse. 

While this law may seem restrictive, it serves a valid purpose: to protect the rights of a spouse who might otherwise be left in need or even destitute. As you will soon see, the spousal right of election is a complicated business. If you are having trouble understanding or implementing this (or any other concept of estate planning) in Virginia, Randall J. Borden, Attorney at Law is the one to contact for assistance.

Having successfully practiced law for 30 years, he has extensive experience explaining the intricacies of estate planning to his clients, as well as providing them with astute legal counsel to protect their personal and financial interests. Whether you are planning your own estate or concerned about your own future inheritance, contact him for a clarifying, confidential consultation. 

What is the Spousal Right of Election and What Is Its Purpose?

The spousal right of election is a legal provision that ensures a surviving spouse will receive a fair share of their deceased spouse’s estate. It is designed to protect spouses from being disinherited and to guarantee them a portion of the estate, regardless of the stated wishes of the deceased’s will. As a safety net for spouses who might otherwise be left with nothing, the spousal right of election basically affirms that marriage is a financial, as well as legal and emotional, bonding.

The right of election applies to any living spouse, healthy or incapacitated. It is important to realize that the right of election may be exercised only by the spouse or on behalf of a surviving spouse who is alive when the elective right of election is filed.

Differences Between Spousal Right of Election Laws in Virginia and Maryland

Both Virginia and Maryland consider the augmented estate in calculating the elective share, but Maryland’s new Augmented Estate Law, enacted in 2020, is broader in defining what constitutes the augmented estate, including as it does both estate assets that will be probated and those that will not go through probate. As far as intestacy shares are concerned, the specific amounts and proportions differ between the two states.

Why Legal Guidance is Critical in Matters of the Spousal Right of Election

As you can see, the complexities and specific details of these laws make having a savvy, communicative attorney at your side imperative. Randall Borden will leverage his comprehensive knowledge of Virginia state laws to tailor his responses to your specific circumstances. Trust him to protect your rights and interests and ensure every move you make follows relevant state laws.

Impact on Estate Distribution

In the context of estate planning, the spousal right of election significantly affects how assets are distributed. It impacts not only the rights of the testator and the testator’s spouse, but those of the children of the deceased, and other beneficiaries. If a spouse elects to take their statutory share, it will alter the other distributions specified in the will, potentially reducing the amounts allocated to other beneficiaries. Such alterations can sometimes lead to disputes or litigation.

Application in Intestate Situations

When a person dies intestate (without a will), the spousal right of election still plays an essential role. In such cases, state laws dictate how the estate is divided, with a portion usually reserved for the surviving spouse. This distribution varies between Virginia and Maryland and depends on other factors like the presence of children from the existing marriage or previous relationships.

How Spousal Right of Election Law Differs Between Virginia and Maryland

Virginia’s laws of intestate succession state that when a person dies leaving a spouse and children, one-third of the person’s assets pass to the spouse, and two-thirds of the person’s assets pass to the children. If a person does not have any children, all of the assets pass to the spouse.

Maryland’s laws, especially with the inclusion of the Augmented Estate Law, make it even more challenging to disinherit a spouse since this law expands the estate to include non-probate assets, like payable-on-death accounts and jointly held properties, when calculating the elective share, thereby offering broader protection to the surviving spouse.

Randall J. Borden Is the Right Choice When It Comes to Deciphering Legal Matters

Randall Borden is adept when it comes to:

  • Protecting the testator’s wishes while complying with state laws
  • Advising the surviving spouse of their rights and options
  • Navigating the challenges of conflicts
  • Protecting other beneficiaries from disinheritance
  • Providing special considerations for incapacitated spouses which may involve working with guardians or legal representatives to ensure their rights are protected

Contact Our Fairfax Attorney Now to Discuss the Spousal Right of Election

The spousal right of election is by no means the only complex element of estate planning. Because all such elements require thorough understanding, it is crucial to have a seasoned estate planning attorney to advise you and safeguard your rights. No matter what your own areas of expertise, you need the wise counsel of an experienced legal professional to protect you and your family now and in the future. Contact us today.