                                 CODE OF VIRGINIA

SOURCES FROM WHICH ELECTIVE SHARE PAYABLE (§ 64.2-308.10)

A. 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&#8217;s probate estate and recipients of the
decedent&#8217;s non-probate transfers to others:

   1. Amounts excluded from the augmented estate under subdivision B 1 of &#xA7;
   64.2-308.9 that passed to the surviving spouse and amounts that passed to the
   surviving spouse at the decedent&#8217;s death pursuant to the
   decedent&#8217;s exercise of a power of appointment over property not included
   in the augmented estate;

   2. Amounts included in the augmented estate under &#xA7; 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 &#xA7; 64.2-308.7; and

   3. The marital property portion of amounts included in the augmented estate
   under &#xA7; 64.2-308.8.

B. The marital property portion under subdivision A 3 is computed by multiplying
the value of the amounts included in the augmented estate under &#xA7;
64.2-308.8 by the percentage of the augmented estate set forth in the schedule
in subsection B of &#xA7; 64.2-308.4 appropriate to the length of time the
spouse and the decedent were married to each other.

C. If, after the application of subsection A, the elective share amount is not
fully satisfied, amounts included in the decedent&#8217;s net probate estate,
other than assets passing to the surviving spouse by testate or intestate
succession, and in the decedent&#8217;s non-probate transfers to others under
subdivisions 1, 2, and 3 b of &#xA7; 64.2-308.6 are applied first to satisfy the
unsatisfied balance of the elective share amount. The decedent&#8217;s net
probate estate and that portion of the decedent&#8217;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&#8217;s net
probate estate and of that portion of the decedent&#8217;s non-probate transfers
to others in proportion to the value of their interests therein.

D. If, after the application of subsections A and C, the elective share amount
is not fully satisfied, the remaining portion of the decedent&#8217;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&#8217;s non-probate transfers to others in
proportion to the value of their interests therein.

E. The unsatisfied balance of the elective share amount as determined under
subsection C or D is treated as a general pecuniary bequest.

HISTORY: 2016, cc. 187, 269; 2018, c. 301.