Virginia Laws on Willed Property in Divorce

By Elizabeth Rayne

Getting a divorce in Virginia brings up a lot of issues surrounding wills and estates, particularly if one spouse passes away while the divorce is pending. Generally, assets a spouse inherited under a will are not impacted by a divorce. However, Virginia law provides that spouses must receive a certain portion of the deceased spouse's estate, even if the marriage is headed for divorce.

Property Distribution

Following a divorce in Virginia, courts will follow the guidelines for equitable distribution when dividing property between the spouses. The court will only divide marital property, while separate property remains with the spouse who owns it. Generally, if one spouse received property under a will, and the property was given only to one spouse, then the inherited assets are considered separate property, meaning the ownership will not be impacted by the divorce.

Transmutation and Commingling

In certain situations, however, separate property may be "transmuted," or converted, into marital property, meaning the character of the property is changed from separate property to marital property; thereby, enabling the court to divide the assets between spouses. Transmutation can occur if separate property is commingled with marital property, for example, when inherited money is deposited in a jointly held bank account and money from that account is used to support the family. Similarly, separate property may be transmuted into marital property if the couple takes steps to increase the value of the property with marital funds or separate property is retitled into both spouses' names. Once assets are considered marital property, the court will consider a number of factors to determine how to fairly divide the property, such as contributions made during the marriage and which spouse took care of the property.

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Divorce and Estate Planning

Under Virginia law, a divorce will automatically revoke any provisions in a will which give property to an ex-spouse. However, review the will to see if it includes a provision that overrides the law and provides your ex-spouse will benefit from the will, in spite of a divorce. Additionally, bequests to a spouse will only be revoked once the divorce is final, not if the couple is merely separated while a divorce is pending.

Elective Share

If one spouse passes away while a divorce is pending, the surviving spouse has the right to receive an elective share of the decedent's estate, despite what may be in the deceased spouse's will. The elective share is a somewhat complicated formula, but essentially, it provides that the spouse must receive at least one-third to one-half of the estate, depending on whether or not the deceased spouse had children or other descendants. The surviving spouse has the option to take what was awarded to her under the will or to take the statutory elective share. Once the divorce is final, the surviving spouse loses the right to an elective share.

Intestate Laws

If a spouse without a will dies during the divorce process, the other spouse may collect a portion of her spouse's estate under the state's intestate laws. Intestate laws provide that when a person dies without a will, his widowed spouse is entitled to receive the entire estate unless the deceased spouse had children from a prior relationship. Children from a prior relationship will divide the estate with the living spouse. Once the divorce is finalized, the ex-spouse does not receive anything under intestacy laws.

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