A spouse’s elective share in Virginia

Spouse's Elective ShareI recently prepared an estate plan for a client who had, for various reasons, never finalized her divorce with the father of her children.  In preparing her will, she wanted to have her estate divided between her children but was completely unaware that her estranged husband might have a spouse’s elective share claim.

What is a spouse’s elective share?

A spouse’s elective share is a portion of a decedent’s estate to which a spouse is statutorily entitled.  While the surviving spouse is not required to exercise this election, one cannot sever them from the right to do so unless there is a valid waiver in place specifically waiving the right such as a prenuptial or postnuptial agreement.  A surviving spouse may exercise this right if the decedent died intestate (without a will), left them out of the will entirely, or did not leave as much as they can claim under the elective share.

Recent Changes in Virginia’s spousal elective share

Historically, the laws governing a spouse’s elective share in Virginia were located at § 64.2-300, et seq. of the Code of Virginia.  Under that now-superceded version of the law, the spouse of a decedent was entitled to “(i) one-third of the decedent’s augmented estate if the decedent left surviving children or their descendants or (ii) one-half of the decedent’s augmented estate if the decedent left no surviving children or their descendants.

In my client’s case, since she has surviving children, the old rules would have conceivably allowed her husband to claim one-third of her augmented estate.

During the 2016 legislative session House Bill 231 and Senate Bill 181 were passed, changing a number of provisions in this area of law.  These changes took effect on January 1, 2017.  The laws governing a spouse’s elective share are now located at § 64.2-308.1, et seq.

In the new version, a spouse is entitled to “take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.

So in my client’s case, the new rules would conceivably allow her husband to claim one-half of the marital-property portion of her augmented estate.

What is an augmented estate?

This term is used in both the old and new versions of the elective share laws.  However, the list of those assets that comprise the augmented estate also changed on January 1, 2017.

A point-by-point comparison of the differences is beyond the scope of this article.  However, the important thing to note is that, under the new definition, the augmented estate includes the decedent’s non-probate transfers to others.  This would include assets passing outside of probate to the beneficiaries of revocable trusts, transfer-on-death deeds, and other assets with direct benificiary designations.

Complicating matters, there is a percentage allocation table which requires a couple to have been married 15 years in order for a surviving spouse to get credit for 100% of the value.

When is a surviving spouse not entitled to an elective share?

There are a number of defenses to a spousal election.  The first is that the right was somehow waived, perhaps in a prenuptial or postnuptial agreement, a separation agreement, or some other waiver standing alone.  The second occurs when the surviving spouse “deserts or abandons the other spouse and such desertion or abandonment continues until the death of the [decedent].

What does this mean to the average person?

It means that the legal framework surrounding each step in your life is important.

It means that you should consider a prenuptial agreement prior to marriage to insure that both parties fully understand how they are going to handle the financial aspects of their marriage and any possible separation or divorce.

If you are already married and wish to make such decisions then perhaps a postnuptial agreement is in order.

If you are going to separate but remain married, then you should consider adding language to the separation agreement addressing spousal elective share.

Finally, estate planning should be a part of your life at every stage, and should be revisited as your circumstances change (children born or adopted, marriage, divorce, and the passing of loved ones).  Make sure the assets you worked so hard to earn are left to those you truly want to receive them.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in Estate Planning, Family Law, Postnuptial Agreements, Prenuptial Agreements | Comments Off on A spouse’s elective share in Virginia

Understanding the implications of the recent ATF ruling regarding overall length measurements

Social media is buzzing about the recent release of a letter from the ATF regarding folding or telescoping ‘stabilizing braces’, non-standard receiver extensions, and the measurement of overall length (OAL).

I have received several calls and emails from clients who are unsure whether this ruling will impact their particular configuration(s).

While there may be other implications, this ruling will primarily affect those who have added a folding or telescoping stabilizing brace (or other non-standard receiver extension) to a pistol with the intent of making the OAL greater than 26 inches so that a vertical fore-grip may be added to the pistol without it becoming an Any-Other-Weapon (AOW).

The ATF’s position is as follows:

a) Adding a vertical fore-grip to a pistol generally makes it an AOW subject to the requirements of the National Firearms Act (NFA).

b) However, if the overall length (OAL) of the pistol is greater than 26 inches then adding a vertical fore-grip doesn’t result in the pistol becoming an AOW.

Previously, many people have concluded that the OAL of a pistol containing a folding or telescoping stabilizing brace would be measured with the brace extended since the OAL of a rifle or shotgun is measured with the stock extended (see below).

However, this latest ruling makes it clear that ‘stabilizing braces’ are NOT stocks and they must be measured with the brace folded or collapsed.  If the OAL with the brace folded or collapsed is less than 26 inches then the addition of a vertical fore-grip will render said firearm an AOW.  If you have such a firearm, I recommend remove the vertical fore-grip immediately.

Finally, there is a second component of the ruling that few people are discussing: the language regarding non-standard receiver extensions.  What does this mean?  I interpret it to mean that if you have a non-folding and non-telescoping brace which would, in its default configuration, not be greater than 26 inches, you cannot use spacers or other extensions to artificially extend it beyond 26 inches.  If the only reason your pistol configuration is greater than 26 inches is that you have a spacer installed and you have a vertical fore-grip installed, I recommend you remove the vertical fore-grip immediately.

If you are looking for alternatives, see my article on angled fore-grips or my article on permanently attaching a muzzle device.

 

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in Administrative Law, AOW, AR Pistols, ATF, ATF Guidance Letters, ATF Ruling, BATFE, Overall Length (OAL), Stabilizing Brace | Comments Off on Understanding the implications of the recent ATF ruling regarding overall length measurements

Can a private seller ship a Curio and Relic firearm directly to an out-of-state C&R FFL holder?

One of my clients called with this question today.  He was selling a firearm that happens to be listed on Section II of the latest Curios and Relics List and the buyer was a C&R FFL holder from another state.

For those unfamiliar with the Curios and Relics List, Section II contains those firearms that are deemed to be a Curio and Relic (C&R), but which are still subject to the provisions of the Gun Control Act (GCA).

Never having dealt with an out-of-state C&R holder before, my client was concerned about the ‘still subject to the Gun Control Act‘ verbiage and how that might intersect with interstate shipment.

As it turns out, from a federal law perspective, there is a fairly simple answer to this question for most classes of C&R firearms (those on the C&R list but still subject to the National Firearms Act require additional details and are not covered here).

In short, a C&R FFL allows a holder to receive intrastate and interstate shipments of C&R firearms directly from a seller (licensed or individual) without violating federal law.

However, as is always the case where legal issues are concerned, that isn’t the end of the analysis.  There may be additional requirements imposed by state law in the C&R holders state.

Therefore, while there is no bar under federal law, anyone shipping to a C&R holder in another state would be advised to get appropriate legal advice regarding the laws in the C&R holder’s state prior to shipping the firearm.

Posted in C&R, Criminal Law, Curio and Relic, Federal Law, FFL 03, FFL Issues, Interstate Firearm Transfers, Private Sales | Comments Off on Can a private seller ship a Curio and Relic firearm directly to an out-of-state C&R FFL holder?