§ 64.1-16.2. Charging spouse with gifts received; liability of others for balance of elective share; determinati...
A. In determining the elective share, values included in the augmented estate which pass or have passed to the surviving spouse, or which would have passed to the spouse but were disclaimed, are applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the augmented estate.
B. Remaining property of the augmented estate is so applied that liability for the balance of the elective share of the surviving spouse and interest thereon is equitably apportioned among the recipients of the augmented estate in proportion to the value of their interests therein.
C. The only persons subject to contribution to make up the elective share of the surviving spouse are (i) original transferees from or appointees of the decedent, and subsequent gratuitous inter vivos donees or persons claiming by testate or intestate succession to the extent such persons have the property or its proceeds on or after the date of the decedent's death, and (ii) a fiduciary, as to the property under the fiduciary's control at or after the time a fiduciary receives notice that a surviving spouse has claimed an elective share in the decedent's estate. A corporate fiduciary shall not be considered to have notice until it receives notice at its address as shown in the decedent's estate papers in the clerk's office or, if there are no such papers or no address is shown therein, at the office of its registered agent.
No other party is subject to contribution to make up the elective share even though the party makes a payment or transfers an item of property or other benefit to any person with actual knowledge that a surviving spouse has claimed an elective share in the decedent's estate.
D. Upon petition of the surviving spouse, the decedent's personal representative, or any party in interest, the court having jurisdiction over administration of the decedent's estate shall determine the amount of the elective share and the ratable portion of the elective share attributable to each person liable to contribution. Such petition may be brought against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
E. Within thirty days after the court's determination of the contributions due under subsection D becomes final and not subject to further appeal, any person liable to the surviving spouse for contribution may file with the court a written statement specifying any of the following methods for satisfying his contribution and interest liability:
1. Conveyance of a portion of the property included in the augmented estate, which portion is equal in value to his liability on the date the contribution statement is filed as provided in this subsection; however, if, on the date of filing, the value of the property included in the augmented estate is less than his liability, he may convey the property to the surviving spouse in full satisfaction;
2. Payment of the value of his liability in cash or, upon agreement of the surviving spouse, other property; or
3. Partial conveyance and partial payment under subdivisions 1 and 2 above, provided the value conveyed and paid is equal to his liability.
In the event a contribution statement is not filed within thirty days, the court shall enter an order specifying the method by which liability to the surviving spouse shall be satisfied.
F. As used in this section, the terms "estate" and "property" shall include insurance policies, retirement benefits exclusive of federal social security benefits, annuities, pension plans, deferred compensation arrangements, and employee benefit plans to the extent owned by, vested in, or subject to the control of the decedent on the date of his death or an irrevocable transfer by him during his lifetime. All such insurance policies and other benefits are included in the terms "estate" and "property" notwithstanding the presence of language contained in any statute otherwise providing that neither they nor their proceeds shall be liable to attachment, garnishment, levy, execution, or other legal process or be seized, taken, appropriated, or applied by any legal or equitable process or operation of law or any other such similar language.
(1990, c. 831; 1992, cc. 617, 647; 2007, c. 308.)
Sections: Previous 64.1-8.1 64.1-9 64.1-10 64.1-11 64.1-12 64.1-13 64.1-14 64.1-15 64.1-16 64.1-16.1 64.1-16.2 64.1-16.3 64.1-16.4 64.1-17 64.1-18 NextLast modified: April 3, 2009