Updated September 5, 2026. Quick answer: Virginia’s elective share is not the one-third-of-everything, marriage-length figure most national pages describe. a flat 50% of the value of the ‘marital-property portion’ of the augmented estate; does not increase with years married
What Virginia actually sets out
| What the statute sets out | What it says |
|---|---|
| Va. Code Ann. Sec. 64.2-308.3 (elective-share amount) | “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.” |
| The share and what it is measured against | a flat 50% of the value of the ‘marital-property portion’ of the augmented estate; does not increase with years married; measured against the marital-property portion of the augmented estate; a coverture-fraction-style subset isolating wealth built during the marriage, not the whole augmented estate and not merely the probate estate. |
| Regime type | a flat share of the marital-property portion only |
| Can it be waived | waivable wholly or partially, before or after marriage, by signed written contract; unenforceable if involuntary or unconscionable with inadequate disclosure |
| Time limit to file | the election must be filed within 6 months of probate admission/qualification of the personal representative, and the complaint to determine the amount within 6 months after the election |
How it works in practice
- The share is measured against the marital-property portion of the augmented estate; a coverture-fraction-style subset isolating wealth built during the marriage, not the whole augmented estate and not merely the probate estate.
- No. This state’s formula is deliberately built to reach revocable trusts, payable-on-death accounts and other lifetime transfers, precisely so the elective share cannot be defeated by moving assets out of probate before death.
- Waiver: Waivable wholly or partially, before or after marriage, by signed written contract; unenforceable if involuntary or unconscionable with inadequate disclosure.
- The election has to be affirmatively filed on a deadline: the election must be filed within 6 months of probate admission/qualification of the personal representative, and the complaint to determine the amount within 6 months after the election.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for Virginia specifically, and its own numbers above should be used instead of the calculator’s national default for a Virginia estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This citation and figure were fetched directly from the state’s own official code site and read against the current text this session.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in Virginia is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.