{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/64.2-308.10.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/64.2-308.10.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/64.2-308.10.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/64.2-308.10.html"}],"law_id":57764,"edition_id":1,"section_id":57764,"structure_id":12865,"section_number":"64.2-308.10","catch_line":"Sources from which elective share payable","history":"2016, cc. 187, 269; 2018, c. 301.","full_text":"A\n\nIn a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s non-probate transfers to others:1\n\nAmounts excluded from the augmented estate under subdivision B 1 of § 64.2-308.9 that passed to the surviving spouse and amounts that passed to the surviving spouse at the decedent’s death pursuant to the decedent’s exercise of a power of appointment over property not included in the augmented estate;2\n\nAmounts included in the augmented estate under § 64.2-308.5 that pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 64.2-308.7; and3\n\nThe marital property portion of amounts included in the augmented estate under § 64.2-308.8.B\n\nThe marital property portion under subdivision A 3 is computed by multiplying the value of the amounts included in the augmented estate under § 64.2-308.8 by the percentage of the augmented estate set forth in the schedule in subsection B of § 64.2-308.4 appropriate to the length of time the spouse and the decedent were married to each other.C\n\nIf, after the application of subsection A, the elective share amount is not fully satisfied, amounts included in the decedent’s net probate estate, other than assets passing to the surviving spouse by testate or intestate succession, and in the decedent’s non-probate transfers to others under subdivisions 1, 2, and 3 b of § 64.2-308.6 are applied first to satisfy the unsatisfied balance of the elective share amount. The decedent’s net probate estate and that portion of the decedent’s non-probate transfers to others are so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the decedent’s net probate estate and of that portion of the decedent’s non-probate transfers to others in proportion to the value of their interests therein.D\n\nIf, after the application of subsections A and C, the elective share amount is not fully satisfied, the remaining portion of the decedent’s non-probate transfers to others is so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the remaining portion of the decedent’s non-probate transfers to others in proportion to the value of their interests therein.E\n\nThe unsatisfied balance of the elective share amount as determined under subsection C or D is treated as a general pecuniary bequest.","order_by":null,"text":{"0":{"id":211549,"text":"In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s non-probate transfers to others:","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"A1"},"1":{"id":211550,"text":"Amounts excluded from the augmented estate under subdivision B 1 of § 64.2-308.9 that passed to the surviving spouse and amounts that passed to the surviving spouse at the decedent’s death pursuant to the decedent’s exercise of a power of appointment over property not included in the augmented estate;","type":"section","prefixes":["A","1"],"prefix":"1","entire_prefix":"A1","prefix_anchor":"A1","level":2,"prior_prefix":"A","next_prefix":"A2"},"2":{"id":211551,"text":"Amounts included in the augmented estate under § 64.2-308.5 that pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 64.2-308.7; and","type":"section","prefixes":["A","2"],"prefix":"2","entire_prefix":"A2","prefix_anchor":"A2","level":2,"prior_prefix":"A1","next_prefix":"A3"},"3":{"id":211552,"text":"The marital property portion of amounts included in the augmented estate under § 64.2-308.8.","type":"section","prefixes":["A","3"],"prefix":"3","entire_prefix":"A3","prefix_anchor":"A3","level":2,"prior_prefix":"A2","next_prefix":"B"},"4":{"id":211553,"text":"The marital property portion under subdivision A 3 is computed by multiplying the value of the amounts included in the augmented estate under § 64.2-308.8 by the percentage of the augmented estate set forth in the schedule in subsection B of § 64.2-308.4 appropriate to the length of time the spouse and the decedent were married to each other.","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A3","next_prefix":"C"},"5":{"id":211554,"text":"If, after the application of subsection A, the elective share amount is not fully satisfied, amounts included in the decedent’s net probate estate, other than assets passing to the surviving spouse by testate or intestate succession, and in the decedent’s non-probate transfers to others under subdivisions 1, 2, and 3 b of § 64.2-308.6 are applied first to satisfy the unsatisfied balance of the elective share amount. The decedent’s net probate estate and that portion of the decedent’s non-probate transfers to others are so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the decedent’s net probate estate and of that portion of the decedent’s non-probate transfers to others in proportion to the value of their interests therein.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B","next_prefix":"D"},"6":{"id":211555,"text":"If, after the application of subsections A and C, the elective share amount is not fully satisfied, the remaining portion of the decedent’s non-probate transfers to others is so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the remaining portion of the decedent’s non-probate transfers to others in proportion to the value of their interests therein.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C","next_prefix":"E"},"7":{"id":211556,"text":"The unsatisfied balance of the elective share amount as determined under subsection C or D is treated as a general pecuniary bequest.","type":"section","prefixes":["E"],"prefix":"E","entire_prefix":"E","prefix_anchor":"E","level":1,"prior_prefix":"D"}},"ancestry":[{"id":12865,"edition_id":1,"name":"Elective Share of Surviving Spouse of Decedent Dying on or After January 1, 2017","identifier":"1.1","label":"article","depth":4,"order_by":1,"parent_id":12864,"metadata":{},"date_created":"2026-06-26 03:43:57","date_modified":"2026-06-26 03:43:57","permalink":{"id":272983,"object_type":"structure","relational_id":12865,"identifier":"1.1","token":"64.2\/II\/3\/1.1","url":"\/64.2\/II\/3\/1.1\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12864,"edition_id":1,"name":"Rights of Married Persons","identifier":"3","label":"chapter","depth":3,"order_by":1,"parent_id":12863,"metadata":{},"date_created":"2026-06-26 03:43:57","date_modified":"2026-06-26 03:43:57","permalink":{"id":272943,"object_type":"structure","relational_id":12864,"identifier":"3","token":"64.2\/II\/3","url":"\/64.2\/II\/3\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12863,"edition_id":1,"name":"Wills and Decedents' Estates","identifier":"II","label":"subtitle","depth":2,"order_by":1,"parent_id":12723,"metadata":{},"date_created":"2026-06-26 03:43:57","date_modified":"2026-06-26 03:43:57","permalink":{"id":272911,"object_type":"structure","relational_id":12863,"identifier":"II","token":"64.2\/II","url":"\/64.2\/II\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12723,"edition_id":1,"name":"Wills, Trusts, and Fiduciaries","identifier":"64.2","label":"title","depth":1,"order_by":1,"parent_id":null,"metadata":{},"date_created":"2026-06-26 03:43:50","date_modified":"2026-06-26 03:43:50","permalink":{"id":272781,"object_type":"structure","relational_id":12723,"identifier":"64.2","token":"64.2","url":"\/64.2\/","edition_id":1,"permalink":0,"preferred":1}}],"structure_contents":[{"id":86374,"structure_id":12865,"section_number":"64.2-308.1","catch_line":"Applicability; definitions","url":"\/64.2-308.1\/","token":"64.2\/II\/3\/1.1\/64.2-308.1","metadata":false},{"id":57764,"structure_id":12865,"section_number":"64.2-308.10","catch_line":"Sources from which elective share payable","url":"\/64.2-308.10\/","token":"64.2\/II\/3\/1.1\/64.2-308.10","metadata":false},{"id":61941,"structure_id":12865,"section_number":"64.2-308.11","catch_line":"Personal liability of recipients","url":"\/64.2-308.11\/","token":"64.2\/II\/3\/1.1\/64.2-308.11","metadata":false},{"id":58055,"structure_id":12865,"section_number":"64.2-308.12","catch_line":"Proceeding for elective share; time limit","url":"\/64.2-308.12\/","token":"64.2\/II\/3\/1.1\/64.2-308.12","metadata":false},{"id":69369,"structure_id":12865,"section_number":"64.2-308.13","catch_line":"Right of election personal to surviving spouse; incapacitated surviving spouse","url":"\/64.2-308.13\/","token":"64.2\/II\/3\/1.1\/64.2-308.13","metadata":false},{"id":66052,"structure_id":12865,"section_number":"64.2-308.14","catch_line":"Waiver of right to elect and of other rights; defenses","url":"\/64.2-308.14\/","token":"64.2\/II\/3\/1.1\/64.2-308.14","metadata":false},{"id":53998,"structure_id":12865,"section_number":"64.2-308.15","catch_line":"Protection of payors and other third parties","url":"\/64.2-308.15\/","token":"64.2\/II\/3\/1.1\/64.2-308.15","metadata":false},{"id":79802,"structure_id":12865,"section_number":"64.2-308.16","catch_line":"Rights in family residence","url":"\/64.2-308.16\/","token":"64.2\/II\/3\/1.1\/64.2-308.16","metadata":false},{"id":80426,"structure_id":12865,"section_number":"64.2-308.17","catch_line":"Statutory rights barred by desertion or abandonment","url":"\/64.2-308.17\/","token":"64.2\/II\/3\/1.1\/64.2-308.17","metadata":false},{"id":72651,"structure_id":12865,"section_number":"64.2-308.2","catch_line":"Dower or curtesy abolished","url":"\/64.2-308.2\/","token":"64.2\/II\/3\/1.1\/64.2-308.2","metadata":false},{"id":57125,"structure_id":12865,"section_number":"64.2-308.3","catch_line":"Elective share amount; effect of election on statutory benefits; non-domiciliary","url":"\/64.2-308.3\/","token":"64.2\/II\/3\/1.1\/64.2-308.3","metadata":false},{"id":56825,"structure_id":12865,"section_number":"64.2-308.4","catch_line":"Composition of the augmented estate; marital property portion","url":"\/64.2-308.4\/","token":"64.2\/II\/3\/1.1\/64.2-308.4","metadata":false},{"id":75341,"structure_id":12865,"section_number":"64.2-308.5","catch_line":"Decedent's net probate estate","url":"\/64.2-308.5\/","token":"64.2\/II\/3\/1.1\/64.2-308.5","metadata":false},{"id":73894,"structure_id":12865,"section_number":"64.2-308.6","catch_line":"Decedent's non-probate transfers to others","url":"\/64.2-308.6\/","token":"64.2\/II\/3\/1.1\/64.2-308.6","metadata":false},{"id":68829,"structure_id":12865,"section_number":"64.2-308.7","catch_line":"Decedent's non-probate transfers to the surviving spouse","url":"\/64.2-308.7\/","token":"64.2\/II\/3\/1.1\/64.2-308.7","metadata":false},{"id":54460,"structure_id":12865,"section_number":"64.2-308.8","catch_line":"Surviving spouse's property and non-probate transfers to others","url":"\/64.2-308.8\/","token":"64.2\/II\/3\/1.1\/64.2-308.8","metadata":false},{"id":80125,"structure_id":12865,"section_number":"64.2-308.9","catch_line":"Exclusions, valuation, and overlapping application","url":"\/64.2-308.9\/","token":"64.2\/II\/3\/1.1\/64.2-308.9","metadata":false}],"previous_section":{"id":86374,"structure_id":12865,"section_number":"64.2-308.1","catch_line":"Applicability; definitions","url":"\/64.2-308.1\/","token":"64.2\/II\/3\/1.1\/64.2-308.1","metadata":false},"next_section":{"id":61941,"structure_id":12865,"section_number":"64.2-308.11","catch_line":"Personal liability of recipients","url":"\/64.2-308.11\/","token":"64.2\/II\/3\/1.1\/64.2-308.11","metadata":false},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/64.2-308.10\/","history_text":"

This law was first created in 2016. The record of its establishment is cataloged in chapters 187<\/a> and 269<\/a> of that year\u2019s edition of \u201cActs of Assembly,\u201d the annual state publication listing all changes made to the Code of Virginia in that year. It has been modified 1 time. Those modifications are cataloged by \u201cThe Acts of Assembly,\u201d a state publication, by year and chapter. Those modifications that can be read on the General Assembly\u2019s website will be linked accordingly. That modification is as follows: in 2018, chapter 301<\/a>.<\/p>","references":[{"id":61941,"section_number":"64.2-308.11","catch_line":"Personal liability of recipients","order_by":null,"url":"\/64.2-308.11\/"},{"id":58055,"section_number":"64.2-308.12","catch_line":"Proceeding for elective share; time limit","order_by":null,"url":"\/64.2-308.12\/"},{"id":69369,"section_number":"64.2-308.13","catch_line":"Right of election personal to surviving spouse; incapacitated surviving spouse","order_by":null,"url":"\/64.2-308.13\/"}],"refers_to":[{"id":56825,"section_number":"64.2-308.4","catch_line":"Composition of the augmented estate; marital property portion","order_by":null,"url":"\/64.2-308.4\/"},{"id":75341,"section_number":"64.2-308.5","catch_line":"Decedent's net probate estate","order_by":null,"url":"\/64.2-308.5\/"},{"id":73894,"section_number":"64.2-308.6","catch_line":"Decedent's non-probate transfers to others","order_by":null,"url":"\/64.2-308.6\/"},{"id":68829,"section_number":"64.2-308.7","catch_line":"Decedent's non-probate transfers to the surviving spouse","order_by":null,"url":"\/64.2-308.7\/"},{"id":54460,"section_number":"64.2-308.8","catch_line":"Surviving spouse's property and non-probate transfers to others","order_by":null,"url":"\/64.2-308.8\/"},{"id":80125,"section_number":"64.2-308.9","catch_line":"Exclusions, valuation, and overlapping application","order_by":null,"url":"\/64.2-308.9\/"}],"permalink":{"id":272989,"object_type":"law","relational_id":57764,"identifier":"64.2-308.10","token":"64.2\/II\/3\/1.1\/64.2-308.10","url":"\/64.2-308.10\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/64.2-308.10\/","token":"64.2\/II\/3\/1.1\/64.2-308.10","dublin_core":{"Title":"Sources from which elective share payable","Type":"Text","Format":"text\/html","Identifier":"\u00a7 64.2-308.10","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s non-probate transfers to others: <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

1.<\/span> Amounts excluded from the augmented estate under subdivision B 1 of § 64.2-308.9<\/a> that passed to the surviving spouse and amounts that passed to the surviving spouse at the decedent’s death pursuant to the decedent’s exercise of a power of appointment over property not included in the augmented estate; <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

2.<\/span> Amounts included in the augmented estate under § 64.2-308.5<\/a> that pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 64.2-308.7<\/a>; and <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

3.<\/span> The marital property portion of amounts included in the augmented estate under § 64.2-308.8<\/a>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> The marital property portion under subdivision A 3 is computed by multiplying the value<\/span> of the amounts included in the augmented estate under § 64.2-308.8<\/a> by the percentage of the augmented estate set forth in the schedule in subsection B of § 64.2-308.4<\/a> appropriate to the length of time the spouse and the decedent were married to each other. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

C.<\/span> If, after the application of subsection A, the elective share amount is not fully satisfied, amounts included in the decedent’s net probate estate, other than assets<\/span> passing to the surviving spouse by testate or intestate succession, and in the decedent’s non-probate transfers to others under subdivisions 1, 2, and 3 b of § 64.2-308.6<\/a> are applied first to satisfy the unsatisfied balance of the elective share amount. The decedent’s net probate estate and that portion of the decedent’s non-probate transfers to others are so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the decedent’s net probate estate and of that portion of the decedent’s non-probate transfers to others in proportion to the value<\/span> of their interests therein. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> If, after the application of subsections A and C, the elective share amount is not fully satisfied, the remaining portion of the decedent’s non-probate transfers to others is so applied that liability for the unsatisfied balance of the elective share amount is apportioned among the recipients of the remaining portion of the decedent’s non-probate transfers to others in proportion to the value<\/span> of their interests therein. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

E.<\/span> The unsatisfied balance of the elective share amount as determined under subsection C or D is treated as a general pecuniary bequest. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nSOURCES FROM WHICH ELECTIVE SHARE PAYABLE (\u00a7 64.2-308.10)\n\nA. In a proceeding for an elective share, the following are applied first to\nsatisfy the elective-share amount and to reduce or eliminate any contributions\ndue from the decedent’s probate estate and recipients of the\ndecedent’s non-probate transfers to others:\n\n 1. Amounts excluded from the augmented estate under subdivision B 1 of §\n 64.2-308.9 that passed to the surviving spouse and amounts that passed to the\n surviving spouse at the decedent’s death pursuant to the\n decedent’s exercise of a power of appointment over property not included\n in the augmented estate;\n\n 2. Amounts included in the augmented estate under § 64.2-308.5 that pass\n or have passed to the surviving spouse by testate or intestate succession and\n amounts included in the augmented estate under § 64.2-308.7; and\n\n 3. The marital property portion of amounts included in the augmented estate\n under § 64.2-308.8.\n\nB. The marital property portion under subdivision A 3 is computed by multiplying\nthe value of the amounts included in the augmented estate under §\n64.2-308.8 by the percentage of the augmented estate set forth in the schedule\nin subsection B of § 64.2-308.4 appropriate to the length of time the\nspouse and the decedent were married to each other.\n\nC. If, after the application of subsection A, the elective share amount is not\nfully satisfied, amounts included in the decedent’s net probate estate,\nother than assets passing to the surviving spouse by testate or intestate\nsuccession, and in the decedent’s non-probate transfers to others under\nsubdivisions 1, 2, and 3 b of § 64.2-308.6 are applied first to satisfy the\nunsatisfied balance of the elective share amount. The decedent’s net\nprobate estate and that portion of the decedent’s non-probate transfers to\nothers are so applied that liability for the unsatisfied balance of the elective\nshare amount is apportioned among the recipients of the decedent’s net\nprobate estate and of that portion of the decedent’s non-probate transfers\nto others in proportion to the value of their interests therein.\n\nD. If, after the application of subsections A and C, the elective share amount\nis not fully satisfied, the remaining portion of the decedent’s\nnon-probate transfers to others is so applied that liability for the unsatisfied\nbalance of the elective share amount is apportioned among the recipients of the\nremaining portion of the decedent’s non-probate transfers to others in\nproportion to the value of their interests therein.\n\nE. The unsatisfied balance of the elective share amount as determined under\nsubsection C or D is treated as a general pecuniary bequest.\n\nHISTORY: 2016, cc. 187, 269; 2018, c. 301.","edition":{"id":1,"name":"2025","slug":"2025","date_created":"2026-06-21 22:39:22","date_modified":"2026-06-21 22:39:22","current":1,"order_by":1,"last_import":null}}