{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/64.2-308.13.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/64.2-308.13.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/64.2-308.13.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/64.2-308.13.html"}],"law_id":69369,"edition_id":1,"section_id":69369,"structure_id":12865,"section_number":"64.2-308.13","catch_line":"Right of election personal to surviving spouse; incapacitated surviving spouse","history":"2016, cc. 187, 269.","full_text":"A\n\nThe right of election may be exercised only by or on behalf of a surviving spouse who is living when the election for the elective share is filed in the court under subsection A of § 64.2-308.12. If the election is not made by the surviving spouse personally, it may be made on the surviving spouse’s behalf by his or her conservator or agent under the authority of a durable power of attorney.B\n\nIf the election is made on behalf of a surviving spouse who is an incapacitated person, and the court enters an order determining the amounts due to the surviving spouse, the court must set aside that portion of the elective share amount due from the decedent’s probate estate and recipients of the decedent’s non-probate transfers to others under subsections C and D of \u00a7 64.2-308.10 and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by a conservator or agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms or such other terms as the court determines appropriate:1\n\nExpenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.2\n\nDuring the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.3\n\nUpon the surviving spouse’s death, the trustee shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse’s heirs under Chapter 2 (§ 64.2-200 et seq.).4\n\nThe trust shall be treated as a testamentary trust subject to the provisions governing testamentary trustees under Title 64.2.","order_by":null,"text":{"0":{"id":250883,"text":"The right of election may be exercised only by or on behalf of a surviving spouse who is living when the election for the elective share is filed in the court under subsection A of § 64.2-308.12. If the election is not made by the surviving spouse personally, it may be made on the surviving spouse’s behalf by his or her conservator or agent under the authority of a durable power of attorney.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":250884,"text":"If the election is made on behalf of a surviving spouse who is an incapacitated person, and the court enters an order determining the amounts due to the surviving spouse, the court must set aside that portion of the elective share amount due from the decedent’s probate estate and recipients of the decedent’s non-probate transfers to others under subsections C and D of \u00a7 64.2-308.10 and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by a conservator or agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms or such other terms as the court determines appropriate:","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"B1"},"2":{"id":250885,"text":"Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.","type":"section","prefixes":["B","1"],"prefix":"1","entire_prefix":"B1","prefix_anchor":"B1","level":2,"prior_prefix":"B","next_prefix":"B2"},"3":{"id":250886,"text":"During the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.","type":"section","prefixes":["B","2"],"prefix":"2","entire_prefix":"B2","prefix_anchor":"B2","level":2,"prior_prefix":"B1","next_prefix":"B3"},"4":{"id":250887,"text":"Upon the surviving spouse’s death, the trustee shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse’s heirs under Chapter 2 (§ 64.2-200 et seq.).","type":"section","prefixes":["B","3"],"prefix":"3","entire_prefix":"B3","prefix_anchor":"B3","level":2,"prior_prefix":"B2","next_prefix":"B4"},"5":{"id":250888,"text":"The trust shall be treated as a testamentary trust subject to the provisions governing testamentary trustees under Title 64.2.","type":"section","prefixes":["B","4"],"prefix":"4","entire_prefix":"B4","prefix_anchor":"B4","level":2,"prior_prefix":"B3"}},"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":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},"next_section":{"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},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/64.2-308.13\/","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":73432,"section_number":"64.2-1805","catch_line":"Powers of guardian","order_by":null,"url":"\/64.2-1805\/"},{"id":78923,"section_number":"64.2-2022","catch_line":"Management powers and duties of conservator","order_by":null,"url":"\/64.2-2022\/"}],"refers_to":[{"id":63124,"section_number":"64.2-200","catch_line":"Course of descents generally; right of Commonwealth if no other heir","order_by":null,"url":"\/64.2-200\/"},{"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":58055,"section_number":"64.2-308.12","catch_line":"Proceeding for elective share; time limit","order_by":null,"url":"\/64.2-308.12\/"}],"permalink":{"id":273001,"object_type":"law","relational_id":69369,"identifier":"64.2-308.13","token":"64.2\/II\/3\/1.1\/64.2-308.13","url":"\/64.2-308.13\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/64.2-308.13\/","token":"64.2\/II\/3\/1.1\/64.2-308.13","dublin_core":{"Title":"Right of election personal to surviving spouse; incapacitated surviving spouse","Type":"Text","Format":"text\/html","Identifier":"\u00a7 64.2-308.13","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> The right of election may be exercised only by or on behalf of a surviving spouse who is living when the election for the elective share is filed in the court<\/span> under subsection A of § 64.2-308.12<\/a>. If the election is not made by the surviving spouse personally, it may be made on the surviving spouse’s behalf by his or her conservator or agent under the authority of a durable power of attorney<\/span>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> If the election is made on behalf of a surviving spouse who is an incapacitated person, and the court<\/span> enters an order<\/span> determining the amounts due to the surviving spouse, the court<\/span> must set aside that portion of the elective share amount due from the decedent’s probate estate and recipients of the decedent’s non-probate transfers to others under subsections C and D of \u00a7 64.2-308.10<\/a> and must appoint a trustee<\/span> to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by a conservator or agent under a durable power of attorney<\/span> is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee<\/span> must administer the trust in accordance with the following terms or such other terms as the court<\/span> determines appropriate: <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

1.<\/span> Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee<\/span> determines suitable and proper for the surviving spouse’s support, without court order<\/span> but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

2.<\/span> During the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee<\/span> a writing signed by the surviving spouse declaring the termination. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

3.<\/span> Upon the surviving spouse’s death, the trustee<\/span> shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will<\/span> of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse’s heirs under Chapter 2 (§ 64.2-200<\/a> et seq.). <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

4.<\/span> The trust shall be treated as a testamentary trust subject to the provisions governing testamentary trustees<\/span> under Title 64.2. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nRIGHT OF ELECTION PERSONAL TO SURVIVING SPOUSE; INCAPACITATED SURVIVING SPOUSE\n(\u00a7 64.2-308.13)\n\nA. The right of election may be exercised only by or on behalf of a surviving\nspouse who is living when the election for the elective share is filed in the\ncourt under subsection A of § 64.2-308.12. If the election is not made by\nthe surviving spouse personally, it may be made on the surviving spouse’s\nbehalf by his or her conservator or agent under the authority of a durable power\nof attorney.\n\nB. If the election is made on behalf of a surviving spouse who is an\nincapacitated person, and the court enters an order determining the amounts due\nto the surviving spouse, the court must set aside that portion of the elective\nshare amount due from the decedent’s probate estate and recipients of the\ndecedent’s non-probate transfers to others under subsections C and D of \u00a7\n64.2-308.10 and must appoint a trustee to administer that property for the\nsupport of the surviving spouse. For the purposes of this subsection, an\nelection on behalf of a surviving spouse by a conservator or agent under a\ndurable power of attorney is presumed to be on behalf of a surviving spouse who\nis an incapacitated person. The trustee must administer the trust in accordance\nwith the following terms or such other terms as the court determines\nappropriate:\n\n 1. Expenditures of income and principal may be made in the manner, when, and\n to the extent that the trustee determines suitable and proper for the\n surviving spouse’s support, without court order but with regard to other\n support, income, and property of the surviving spouse and benefits of medical\n or other forms of assistance from any state or federal government or\n governmental agency for which the surviving spouse must qualify on the basis\n of need.\n\n 2. During the surviving spouse’s incapacity, neither the surviving\n spouse nor anyone acting on behalf of the surviving spouse has a power to\n terminate the trust; but if the surviving spouse regains capacity, the\n surviving spouse then acquires the power to terminate the trust and acquire\n full ownership of the trust property free of trust, by delivering to the\n trustee a writing signed by the surviving spouse declaring the termination.\n\n 3. Upon the surviving spouse’s death, the trustee shall transfer the\n unexpended trust property in the following order: (i) under the residuary\n clause, if any, of the will of the predeceased spouse against whom the\n elective share was taken, as if that predeceased spouse died immediately after\n the surviving spouse; or (ii) to the predeceased spouse’s heirs under\n Chapter 2 (§ 64.2-200 et seq.).\n\n 4. The trust shall be treated as a testamentary trust subject to the\n provisions governing testamentary trustees under Title 64.2.\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}}