Code of Virginia

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Code of Virginia
Title 64.2. Wills, Trusts, and Fiduciaries
Chapter 3. Rights of Married Persons

§ 64.2-308.1. Applicability; definitions.

A. The provisions of this article shall apply to determining the elective share of a surviving spouse for decedents dying on or after January 1, 2017.

B. As used in this article, unless the context requires a different meaning:

"Decedent's non-probate transfers to others" means the amounts that are included in the augmented estate under § 64.2-308.6.

"Fractional interest in property held in joint tenancy with the right of survivorship," whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.

"Marriage," as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse.

"Non-adverse party" means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or non-exercise of the power that he possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.

"Power" or "power of appointment" includes a power to designate the beneficiary of a beneficiary designation.

"Presently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent, whether or not he then had the capacity to exercise the power, held a power to create a present or future interest in himself, his creditors, his estate, or creditors of his estate, and includes a power to revoke or invade the principal of a trust or other property arrangement.

"Property" includes values subject to a beneficiary designation.

"Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.

"Transfer," as it relates to a transfer by or of the decedent, includes (i) an exercise or release of a presently exercisable general power of appointment held by the decedent, (ii) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (iii) an exercise, release, or lapse of a general power of appointment that the decedent created in himself and of a power described in subdivision 2 b of § 64.2-308.6 that the decedent conferred on a non-adverse party.

2016, cc. 187, 269.

The chapters of the acts of assembly referenced in the historical citation at the end of this section may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.