{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/64.2-308.12.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/64.2-308.12.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/64.2-308.12.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/64.2-308.12.html"}],"law_id":58055,"edition_id":1,"section_id":58055,"structure_id":12865,"section_number":"64.2-308.12","catch_line":"Proceeding for elective share; time limit","history":"2016, cc. 187, 269.","full_text":"A\n\nThe election by the surviving spouse of a decedent who dies domiciled in the Commonwealth must be made no later than six months after the later of (i) the time of the admission of the decedent’s will to probate or (ii) the qualification of an administrator on the decedent’s intestate estate, by a writing recorded in the court or the clerk’s office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1. The clerk shall record such election in the will book of the court. A copy of such election shall be provided to the personal representative, if any, by regular U.S. mail or hand delivery within 30 days of filing.B\n\nThe surviving spouse must file the complaint to determine the elective share no later than six months after the filing of the election as set forth in subsection A. No later than 30 days after the filing of the complaint, the surviving spouse must provide a copy of the complaint to all known persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The decedent’s non-probate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the complaint is filed more than 12 months after the decedent’s death.C\n\nNotwithstanding the provisions of § 8.01-380, the election for an elective share may be withdrawn by the surviving spouse at any time before entry of a final determination by the court and such election shall be extinguished.D\n\nAfter notice and hearing, the court shall determine the elective share amount, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 64.2-308.10 and 64.2-308.11. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than such person would have been under §§ 64.2-308.10 and 64.2-308.11 had relief been secured against all persons subject to contribution.E\n\nAn order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.","order_by":null,"text":{"0":{"id":212622,"text":"The election by the surviving spouse of a decedent who dies domiciled in the Commonwealth must be made no later than six months after the later of (i) the time of the admission of the decedent’s will to probate or (ii) the qualification of an administrator on the decedent’s intestate estate, by a writing recorded in the court or the clerk’s office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600 et seq.) of Title 55.1. The clerk shall record such election in the will book of the court. A copy of such election shall be provided to the personal representative, if any, by regular U.S. mail or hand delivery within 30 days of filing.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":212623,"text":"The surviving spouse must file the complaint to determine the elective share no later than six months after the filing of the election as set forth in subsection A. No later than 30 days after the filing of the complaint, the surviving spouse must provide a copy of the complaint to all known persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The decedent’s non-probate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the complaint is filed more than 12 months after the decedent’s death.","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"C"},"2":{"id":212624,"text":"Notwithstanding the provisions of § 8.01-380, the election for an elective share may be withdrawn by the surviving spouse at any time before entry of a final determination by the court and such election shall be extinguished.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B","next_prefix":"D"},"3":{"id":212625,"text":"After notice and hearing, the court shall determine the elective share amount, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 64.2-308.10 and 64.2-308.11. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than such person would have been under §§ 64.2-308.10 and 64.2-308.11 had relief been secured against all persons subject to contribution.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C","next_prefix":"E"},"4":{"id":212626,"text":"An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.","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":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},"next_section":{"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},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/64.2-308.12\/","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.<\/p>","references":[{"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\/"},{"id":53998,"section_number":"64.2-308.15","catch_line":"Protection of payors and other third parties","order_by":null,"url":"\/64.2-308.15\/"}],"refers_to":[{"id":61518,"section_number":"55.1-600","catch_line":"When and where writings recorded","order_by":null,"url":"\/55.1-600\/"},{"id":57764,"section_number":"64.2-308.10","catch_line":"Sources from which elective share payable","order_by":null,"url":"\/64.2-308.10\/"},{"id":61941,"section_number":"64.2-308.11","catch_line":"Personal liability of recipients","order_by":null,"url":"\/64.2-308.11\/"},{"id":55779,"section_number":"8.01-380","catch_line":"Dismissal of action by nonsuit; fees and costs","order_by":null,"url":"\/8.01-380\/"}],"permalink":{"id":272997,"object_type":"law","relational_id":58055,"identifier":"64.2-308.12","token":"64.2\/II\/3\/1.1\/64.2-308.12","url":"\/64.2-308.12\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/64.2-308.12\/","token":"64.2\/II\/3\/1.1\/64.2-308.12","dublin_core":{"Title":"Proceeding for elective share; time limit","Type":"Text","Format":"text\/html","Identifier":"\u00a7 64.2-308.12","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> The election by the surviving spouse of a decedent who dies domiciled in the Commonwealth must be made no later than six months after the later of (i) the time of the admission of the decedent’s will<\/span> to probate or (ii) the qualification of an administrator on the decedent’s intestate estate, by a writing recorded in the court<\/span> or the clerk’s office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55.1-600<\/a> et seq.) of Title 55.1. The clerk shall record such election in the will<\/span> book of the court<\/span>. A copy of such election shall be provided to the personal representative<\/span>, if any, by regular U.S. mail or hand delivery within 30 days of filing. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> The surviving spouse must file the complaint to determine the elective share no later than six months after the filing of the election as set forth in subsection A. No later than 30 days after the filing of the complaint, the surviving spouse must provide a copy of the complaint to all known persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will<\/span> be adversely affected by the taking of the elective share. The decedent’s non-probate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the complaint is filed more than 12 months after the decedent’s death. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

C.<\/span> Notwithstanding the provisions of § 8.01-380<\/a>, the election for an elective share may be withdrawn by the surviving spouse at any time before entry of a final determination by the court<\/span> and such election shall be extinguished. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> After notice and hearing<\/span>, the court<\/span> shall determine the elective share amount, and shall order<\/span> its payment from the assets<\/span> of the augmented estate or by contribution as appears appropriate under §§ 64.2-308.10<\/a> and 64.2-308.11<\/a>. If it appears that a fund or property included in the augmented estate has not come into the possession<\/span> of the personal representative<\/span>, or has been distributed by the personal representative<\/span>, the court<\/span> nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession<\/span> thereof, whether as trustee<\/span> or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than such person would have been under §§ 64.2-308.10<\/a> and 64.2-308.11<\/a> had relief been secured against all persons subject to contribution. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

E.<\/span> An order<\/span> or judgment<\/span> of the court<\/span> may be enforced as necessary in suit for contribution or payment in other courts<\/span> of this state or other jurisdictions<\/span>. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nPROCEEDING FOR ELECTIVE SHARE; TIME LIMIT (\u00a7 64.2-308.12)\n\nA. The election by the surviving spouse of a decedent who dies domiciled in the\nCommonwealth must be made no later than six months after the later of (i) the\ntime of the admission of the decedent’s will to probate or (ii) the\nqualification of an administrator on the decedent’s intestate estate, by a\nwriting recorded in the court or the clerk’s office thereof, upon such\nacknowledgment or proof as would authorize a writing to be admitted to record\nunder Chapter 6 (§ 55.1-600 et seq.) of Title 55.1. The clerk shall record\nsuch election in the will book of the court. A copy of such election shall be\nprovided to the personal representative, if any, by regular U.S. mail or hand\ndelivery within 30 days of filing.\n\nB. The surviving spouse must file the complaint to determine the elective share\nno later than six months after the filing of the election as set forth in\nsubsection A. No later than 30 days after the filing of the complaint, the\nsurviving spouse must provide a copy of the complaint to all known persons\ninterested in the estate and to the distributees and recipients of portions of\nthe augmented estate whose interests will be adversely affected by the taking of\nthe elective share. The decedent’s non-probate transfers to others are not\nincluded within the augmented estate for the purpose of computing the elective\nshare if the complaint is filed more than 12 months after the decedent’s\ndeath.\n\nC. Notwithstanding the provisions of § 8.01-380, the election for an\nelective share may be withdrawn by the surviving spouse at any time before entry\nof a final determination by the court and such election shall be extinguished.\n\nD. After notice and hearing, the court shall determine the elective share\namount, and shall order its payment from the assets of the augmented estate or\nby contribution as appears appropriate under §§ 64.2-308.10 and\n64.2-308.11. If it appears that a fund or property included in the augmented\nestate has not come into the possession of the personal representative, or has\nbeen distributed by the personal representative, the court nevertheless shall\nfix the liability of any person who has any interest in the fund or property or\nwho has possession thereof, whether as trustee or otherwise. The proceeding may\nbe maintained against fewer than all persons against whom relief could be\nsought, but no person is subject to contribution in any greater amount than such\nperson would have been under §§ 64.2-308.10 and 64.2-308.11 had relief\nbeen secured against all persons subject to contribution.\n\nE. An order or judgment of the court may be enforced as necessary in suit for\ncontribution or payment in other courts of this state or other jurisdictions.\n\nHISTORY: 2016, cc. 187, 269.","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}}