Virginia Code 64.2-308.14: Waiver of right to elect and of other rights; defenses.
A. 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.
Terms Used In Virginia Code 64.2-308.14
- Contract: A legal written agreement that becomes binding when signed.
- Decedent: A deceased person.
- in writing: include any representation of words, letters, symbols, numbers, or figures, whether (i) printed or inscribed on a tangible medium or (ii) stored in an electronic or other medium and retrievable in a perceivable form and whether an electronic signature authorized by Virginia Code 1-257
- Intestate: Dying without leaving a will.
- Property: includes values subject to a beneficiary designation. See Virginia Code 64.2-308.1
- Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
B. A surviving spouse’s waiver is not enforceable if the surviving spouse proves that:
1. The waiver was not executed voluntarily; or
2. The waiver was unconscionable when it was executed and before execution of the waiver because:
a. A fair and reasonable disclosure of the property or financial obligations of the decedent was not provided;
b. 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
c. 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. An issue of unconscionability of a waiver is for decision by the court as a matter of law.
D. 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.
E. 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.