Virginia Code

Va. Code Ann. § 64.2-308.3 (2026)

Elective share amount; effect of election on statutory benefits; non-domiciliary

✓ current as of May 2026

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A. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this article, to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.

B. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share amount.

C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

2016, cc. 187, 269.

Notes of Decisions

Cited in 3 cases (2 in the last 5 years), 2018–2025 · leading case: Diana K. Brown v. Megan S. Brown, Individually & as Co-Adm'r, etc., 820 S.E.2d 384 (Va. Ct. App. 2018).

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Diana K. Brown v. Megan S. Brown, Individually & as Co-Adm'r, etc., 820 S.E.2d 384 (Va. Ct. App. 2018). · cites it 2× “4 The final order of divorce terminated former wife’s right to elect a surviving spouse’s share of her husband’s estate pursuant to Code § 64.2-308.3. A contrary holding in this case would also preclude her from sharing in the monetary fruits of the marriage.”

Sue Anderson Teel v. William Lee Teel, of the Est. of Gene Atkins Teel (Va. Ct. App. 2025). · cites it 2× “” Code § 64.2-308.3(A). But “[i]f a spouse willfully deserts or abandons the other spouse .”

Seong Ja Rector v. Eun Ryong Kim, Individually (Va. Ct. App. 2025). “See Code §§ 64.2-308.3, -309, -310, -311. Kim filed a demurrer and plea in bar to the petition, arguing that the wife waived her rights to the statutory elections in her premarital agreement with the husband.”

— Va. Code Ann. § 64.2-308.3(A) — 1 case

Sue Anderson Teel v. William Lee Teel, of the Est. of Gene Atkins Teel (Va. Ct. App. 2025). “” Code § 64.2-308.3(A). But “[i]f a spouse willfully deserts or abandons the other spouse .”

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