                                 CODE OF VIRGINIA

RIGHT OF ELECTION PERSONAL TO SURVIVING SPOUSE; INCAPACITATED SURVIVING SPOUSE
(§ 64.2-308.13)

A. 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 &#xA7; 64.2-308.12. If the election is not made by
the surviving spouse personally, it may be made on the surviving spouse&#8217;s
behalf by his or her conservator or agent under the authority of a durable power
of attorney.

B. 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&#8217;s probate estate and recipients of the
decedent&#8217;s non-probate transfers to others under subsections C and D of §
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. 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&#8217;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. During the surviving spouse&#8217;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. Upon the surviving spouse&#8217;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&#8217;s heirs under
   Chapter 2 (&#xA7; 64.2-200 et seq.).

   4. The trust shall be treated as a testamentary trust subject to the
   provisions governing testamentary trustees under Title 64.2.

HISTORY: 2016, cc. 187, 269.