{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/64.2-308.14.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/64.2-308.14.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/64.2-308.14.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/64.2-308.14.html"}],"law_id":66052,"edition_id":1,"section_id":66052,"structure_id":12865,"section_number":"64.2-308.14","catch_line":"Waiver of right to elect and of other rights; defenses","history":"2016, cc. 187, 269.","full_text":"A\n\nThe right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.B\n\nA surviving spouse’s waiver is not enforceable if the surviving spouse proves that:1\n\nThe waiver was not executed voluntarily; or2\n\nThe waiver was unconscionable when it was executed and before execution of the waiver because:\n\t\t\t\ta. A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided;\n\t\t\t\tb. Any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided was not voluntarily and expressly waived, in writing; and\n\t\t\t\tc. The surviving spouse did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.C\n\nAn issue of unconscionability of a waiver is for decision by the court as a matter of law.D\n\nUnless it provides to the contrary, a waiver of all rights, or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to one spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.E\n\nIf a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted or abandoned the deceased spouse shall be barred of all interest in the decedent’s estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.","order_by":null,"text":{"0":{"id":239998,"text":"The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":239999,"text":"A surviving spouse’s waiver is not enforceable if the surviving spouse proves that:","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"B1"},"2":{"id":240000,"text":"The waiver was not executed voluntarily; or","type":"section","prefixes":["B","1"],"prefix":"1","entire_prefix":"B1","prefix_anchor":"B1","level":2,"prior_prefix":"B","next_prefix":"B2"},"3":{"id":240001,"text":"The waiver was unconscionable when it was executed and before execution of the waiver because:\n\t\t\t\ta. A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided;\n\t\t\t\tb. Any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided was not voluntarily and expressly waived, in writing; and\n\t\t\t\tc. The surviving spouse did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.","type":"section","prefixes":["B","2"],"prefix":"2","entire_prefix":"B2","prefix_anchor":"B2","level":2,"prior_prefix":"B1","next_prefix":"C"},"4":{"id":240002,"text":"An issue of unconscionability of a waiver is for decision by the court as a matter of law.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B2","next_prefix":"D"},"5":{"id":240003,"text":"Unless it provides to the contrary, a waiver of all rights, or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to one spouse from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C","next_prefix":"E"},"6":{"id":240004,"text":"If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted or abandoned the deceased spouse shall be barred of all interest in the decedent’s estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.","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":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},"next_section":{"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},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/64.2-308.14\/","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":false,"refers_to":false,"permalink":{"id":273005,"object_type":"law","relational_id":66052,"identifier":"64.2-308.14","token":"64.2\/II\/3\/1.1\/64.2-308.14","url":"\/64.2-308.14\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/64.2-308.14\/","token":"64.2\/II\/3\/1.1\/64.2-308.14","dublin_core":{"Title":"Waiver of right to elect and of other rights; defenses","Type":"Text","Format":"text\/html","Identifier":"\u00a7 64.2-308.14","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract<\/span>, agreement, or waiver<\/span> signed by the surviving spouse. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> A surviving spouse’s waiver<\/span> is not enforceable if the surviving spouse proves that: <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

1.<\/span> The waiver<\/span> was not executed voluntarily; or <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

2.<\/span> The waiver<\/span> was unconscionable when it was executed and before execution of the waiver<\/span> because:\n\t\t\t\ta. A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided;\n\t\t\t\tb. Any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided was not voluntarily and expressly waived, in writing; and\n\t\t\t\tc. The surviving spouse did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

C.<\/span> An issue<\/span> of unconscionability of a waiver<\/span> is for decision by the court<\/span> as a matter of law<\/span>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> Unless it provides to the contrary, a waiver<\/span> of all rights, or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement<\/span> entered into after or in anticipation of separation or divorce is a waiver<\/span> of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to one spouse from the other by intestate succession or by virtue of any will<\/span> executed before the waiver<\/span> or property settlement<\/span>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

E.<\/span> If a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party<\/span> who deserted or abandoned the deceased spouse shall be barred of all interest in the decedent’s estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nWAIVER OF RIGHT TO ELECT AND OF OTHER RIGHTS; DEFENSES (\u00a7 64.2-308.14)\n\nA. The right of election of a surviving spouse and the rights of the surviving\nspouse to homestead allowance, exempt property, and family allowance, or any of\nthem, may be waived, wholly or partially, before or after marriage, by a written\ncontract, agreement, or waiver signed by the surviving spouse.\n\nB. A surviving spouse’s waiver is not enforceable if the surviving spouse\nproves that:\n\n 1. The waiver was not executed voluntarily; or\n\n 2. The waiver was unconscionable when it was executed and before execution of\n the waiver because:\n \t\t\t\ta. A fair and reasonable disclosure of the property or financial\n obligations of the decedent was not provided;\n \t\t\t\tb. Any right to disclosure of the property or financial obligations of the\n decedent beyond the disclosure provided was not voluntarily and expressly\n waived, in writing; and\n \t\t\t\tc. The surviving spouse did not have, or reasonably could not have had, an\n adequate knowledge of the property or financial obligations of the decedent.\n\nC. An issue of unconscionability of a waiver is for decision by the court as a\nmatter of law.\n\nD. Unless it provides to the contrary, a waiver of all rights, or equivalent\nlanguage, in the property or estate of a present or prospective spouse or a\ncomplete property settlement entered into after or in anticipation of separation\nor divorce is a waiver of all rights of elective share, homestead allowance,\nexempt property, and family allowance by each spouse in the property of the\nother and a renunciation by each of all benefits that would otherwise pass to\none spouse from the other by intestate succession or by virtue of any will\nexecuted before the waiver or property settlement.\n\nE. If a spouse willfully deserts or abandons the other spouse and such desertion\nor abandonment continues until the death of the other spouse, the party who\ndeserted or abandoned the deceased spouse shall be barred of all interest in the\ndecedent’s estate by intestate succession, elective share, exempt\nproperty, family allowance, and homestead allowance.\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}}