It is common for spouses in second marriages to leave most of their estate to their children from a prior marriage, rather than to their second spouse.
However, there may ultimately be complications with this sort of arrangement. Read on to learn more.
The Surviving Spouse Must Still Agree with the Arrangement
Upon the death of one of the spouses, this sort of agreement will only work if the surviving spouse is still content with the arrangement. But if circumstances change or the surviving spouse decides this isn’t the arrangement he or she wants after all, issues may arise.
State law provides that the surviving spouse may refuse to accept the assets provided in the decedent’s will. If this is the case, he or she may instead decide to take the elective share of the estate. This is typically referred to as “taking against the will.”
The state of Virginia’s elective share law permits a surviving spouse to submit a claim on their spouse’s estate if they are dissatisfied with what was provided to them in the will. As the law currently stands, the surviving spouse may claim one-third of the deceased spouse’s estate if there are also surviving children or other descendants.
Waivers Can Help Protect the Will
In order to prevent a surviving spouse from taking against the will, a skilled attorney can help draft the appropriate documentation. Essentially, this is achieved by signing waivers that forfeit the surviving spouse’s right to take against the will.
If you have a valid reason to contest your loved one’s will, our lawyers at Obenshain Law Group may be able to help. Give us a call at (540) 318-7360 or fill out an online contact form to get started.