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As discussed in the prior section, the surviving spouse's right to claim an elective share is based on a fraction of the decedent's augmented estate - one-third if the decedent left surviving children or their descendants and one-half if the surviving spouse is not survived by children or their descendants.
A decedent may have substantial assets that pass to others upon death that are not part of the probate estate. These assets may include assets (for example bank accounts) payable upon death or by survivorship and life insurance. There may have been other assets that the decedent gave as gifts to others or transferred to others without adequate consideration.
To prevent disinheritance of a surviving spouse by actions that distribute or transfer the decedent's assets to third parties, Virginia law incorporates the concept of an augmented estate.
Although a detailed analysis of augmented estate law is beyond the scope of this website, and will greatly depend on the circumstances of a particular estate, the premise is that the elective share claim of a spouse is based on the probate estate of the decedent augmented by other assets as defined under the law.
Stated in very basic terms - an augmented estate equals the probate assets of the decedent, plus assets passing upon the decedent's death outside the probate estate, plus certain transfers by the decedent spouse during his or her lifetime, minus assets received by the surviving spouse from the decedent spouse through probate and non-probate means.
For the purposes of determining the augmented estate, the probate estate is defined as the estate, both real and personal property, passing by testate and intestate succession, after payment of the exempt property and family and homestead allowances, funeral expenses, expenses and costs of administering the estate, and debts.
In addition, there are specific rules that apply to determining property to be included and excluded from the augmented estate, rules for valuing this property and rules adding back in property received by the surviving spouse. There are also provisions for the liability of third parties who received augmented estate assets to contribute to making up the elective share of the surviving spouse and how these contributions can be satisfied.
In some instances the surviving spouse and the personal representative of the estate may reach an agreement on the assets and values to be included in the augment estate. If the parties in interest cannot agree, then a petition may be filed with the court for determination of the augmented estate, and the amount of the elective share to pass to the surviving spouse.
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