Code of Virginia

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Code of Virginia
Title 64.2. Wills, Trusts, and Fiduciaries
Chapter 4. Wills
10/27/2021

Article 3. Construction and Effect.

§ 64.2-414. When wills deemed to speak.

A. A will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

B. Every will reexecuted or republished, or revived by any codicil, shall be deemed to have been made at the time it was reexecuted, republished, or revived.

Code 1950, §§ 64-62, 64-71; 1968, c. 656, §§ 64.1-62, 64.1-72; 2012, c. 614.

§ 64.2-415. How certain trust provisions, bequests, and devises to be construed; nonademption in certain cases.

A. As used in this section:

"Incapacitated" means impairment by reason of mental illness, intellectual disability, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.

"Revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701.

B. Unless a contrary intention appears in the will or trust instrument:

1. A bequest or trust provision requiring distribution by reason of the settlor's death of specific securities, whether or not expressed in number of shares, shall include as much of the securities as is part of the estate or is or becomes part of the trust by reason of the testator's or settlor's death, any additional or other securities of the same entity owned by the testator or trustee by reason of action initiated by the entity, excluding any securities acquired by the exercise of purchase options, and any securities of another entity acquired with respect to the specific securities mentioned in the bequest or trust provision as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity;

2. A bequest, devise, or trust provision requiring distribution by reason of the settlor's death of specific property shall include the amount of any condemnation award for the taking of the property that remains unpaid at death and any proceeds unpaid at death on fire and casualty insurance on the property; and

3. A bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is under a disability, was sold by a conservator, guardian, or committee for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the conservator, guardian, or committee for the testator. For purposes of this subdivision, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision 2. This subdivision shall not apply if, after the sale or casualty, it is adjudicated that the disability of the testator had ceased and the testator survived the adjudication by one year.

C. Unless a contrary intention appears in a testator's will or durable power of attorney, a bequest or devise of specific property shall, in addition to such property that remains part of the estate of the testator, be deemed to be a bequest of a pecuniary amount if such specific property, during the life of the testator and while he is incapacitated, was sold by an agent acting within the authority of a durable power of attorney for the testator, or if proceeds of fire or casualty insurance as to such property are paid to the agent. For purposes of this subsection, (i) the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2, (ii) no adjudication of the testator's incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are rebuttably presumed to be for an incapacitated testator. This subsection shall not apply (a) if the agent's sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the testator or (b) to a power of attorney limited to one or more specific purposes.

D. Unless a contrary intention appears in the will, a devise that would describe a leasehold estate, if the testator had no freehold estate that could be described by the devise, shall be construed to include such a leasehold estate.

E. Unless a contrary intention appears in the trust instrument, a provision requiring distribution of specific property by reason of the death of the settlor shall, in addition to such property that is or becomes part of the trust by reason of the settlor's death, be deemed to be a distribution of a pecuniary amount if, while the settlor was incapacitated, (i) such specific property was sold by the trustee or (ii) the proceeds of fire or casualty insurance as to such property were paid to the trustee. For purposes of this subsection, the pecuniary amount shall be the net sale price or insurance proceeds, reduced by the sums received under subdivision B 2. For purposes of this subsection, no adjudication of the settlor's incapacity before death is necessary. This subsection shall not apply if the trustee's sale of the specific property or receipt of the insurance proceeds is thereafter ratified by the settlor.

F. This section applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the distribution occurs by reason of the settlor's death and is of property that is or becomes part of the trust by reason of the settlor's death.

Code 1950, § 64-66; 1968, c. 656, § 64.1-66; 1985, c. 429, § 64.1-62.3; 1995, c. 381; 2012, cc. 476, 507, 614; 2018, c. 44.

§ 64.2-416. Devises, bequests, and distributions that fail; how to pass.

A. For the purposes of this section, the terms "revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701.

B. Unless a contrary intention appears in the will or trust instrument, and except as provided in § 64.2-418:

1. If a devise, bequest, or distribution other than a residuary devise, bequest, or distribution fails for any reason, it shall become a part of the residue; and

2. If the residue is devised, bequeathed, or otherwise required to be distributed to two or more persons and the share of one fails for any reason, such share shall pass to the other residuary devisees, legatees, or beneficiaries in proportion to their interests in the residue.

C. Notwithstanding the provisions of §§ 64.2-2604 and 64.2-2605 and unless a contrary intention appears in the will, if a testator makes a bequest, not exceeding the value of $100, to a legatee and such legatee refuses to take possession of such bequest, then the bequest shall fail and becomes a part of the residue of the testator's estate.

D. Subsection B applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the devise, bequest, or distribution occurs by reason of the settlor's death.

1985, c. 592, § 64.1-65.1; 2003, c. 253; 2012, c. 614; 2014, c. 532; 2018, c. 44.

§ 64.2-417. When advancement deemed satisfaction of devise or bequest.

Property that a testator gave during his lifetime to a person shall not be treated as a satisfaction of a devise or bequest to that person, in whole or in part, unless (i) the will provides for deduction of the lifetime gift, (ii) the testator declares in a writing made contemporaneously with the gift that the gift is to be deducted from the devise or bequest or is in satisfaction thereof, or (iii) the devisee or legatee acknowledges in writing that the gift is in satisfaction of the devise or bequest.

Code 1950, § 64-63; 1968, c. 656, § 64.1-63; 1985, c. 432, § 64.1-63.1; 2012, c. 614.

§ 64.2-418. When children or descendants of beneficiary to take estate or trust.

A. For the purposes of this section, the terms "revocable," "settlor," "trust instrument," and "trustee" have the same meanings as provided in § 64.2-701.

B. Unless a contrary intention appears in the will or trust instrument, if a beneficiary, including a beneficiary under a class gift, is (i) a grandparent or a descendant of a grandparent of the testator or settlor and (ii) dead at the time of execution of the will or trust instrument or dead at the time of the testator's or settlor's death, the descendants of the deceased beneficiary who survive the testator or settlor take in the place of the deceased beneficiary. The portion of the testator's estate or the trust that the deceased beneficiary was to take shall be divided into as many equal shares as there are (a) surviving descendants in the closest degree of kinship to the deceased beneficiary and (b) deceased descendants, if any, in the same degree of kinship to the deceased beneficiary who left descendants surviving at the time of the testator's or settlor's death. One share shall pass to each such surviving descendant and one share shall pass per stirpes to such descendants of deceased descendants.

C. This section applies to trusts and trust provisions only to the extent the trust instrument or provision is revocable immediately before the settlor's death on or after July 1, 2018, and the beneficiary would have taken by reason of the settlor's death if the beneficiary survived the settlor.

1985, c. 592, § 64.1-64.1; 2012, c. 614; 2018, c. 44.

§ 64.2-419. Provision for omitted children when no child living when will made.

A. If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator's will, or any descendant of his, who is neither provided for nor mentioned in the will is entitled to such portion of the testator's estate as he would have been entitled to if the testator had died intestate.

B. The devisees and legatees shall contribute ratably to the portion of the testator's estate to which the afterborn or after-adopted child is entitled, either in kind or in money, out of what is devised and bequeathed to them, as the court deems proper. However, if such afterborn or after-adopted child, or any descendant of his, dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will.

Code 1950, § 64-69; 1968, c. 656, § 64.1-70; 1972, c. 825; 2012, c. 614.

§ 64.2-420. Provision for omitted children when child living when will made.

A. If a testator executes a will that makes provision for a living child of the testator, a child born or adopted after execution of a testator's will who is neither provided for nor expressly excluded by the will is entitled to the lesser of (i) such portion of the testator's estate as the afterborn or after-adopted child would have been entitled to if the testator had died intestate or (ii) the equivalent in amount to any bequests and devises to any child named in the will, and if there are bequests or devises to more than one child, then to the largest aggregate bequest or devise to any child.

B. The devisees and legatees of the testator's will shall contribute ratably to the portion of the testator's estate to which the afterborn or after-adopted child is entitled, either in kind or in money, out of what is devised and bequeathed to them, as the court deems proper. However, if such afterborn or after-adopted child dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will.

Code 1950, § 64-70; 1960, c. 527; 1968, c. 656, § 64.1-71; 1972, c. 825; 1978, c. 647; 2012, c. 614.

§ 64.2-421. Construction of certain conditions of spouse's survivorship.

A. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death under a will or trust that provides that the spouse of the decedent shall survive until the distribution of the gift, the will or trust shall be construed as requiring that the spouse survive until the earlier of the date on which the distribution occurs or the date six months after the date of the death of the testator or decedent, unless the court shall find that the decedent intended a contrary result.

B. The proceeding to determine whether the decedent intended that the spouse actually survive until the distribution of the gift shall be filed within 12 months following the death of the decedent. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.

1997, c. 263, § 64.1-66.2; 2012, c. 614.

§ 64.2-422. When omitted spouse to take intestate portion.

If a testator fails to provide by will for a surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate such spouse would have received if the decedent left no will, unless it appears from the will or from the provisions of a valid premarital or marital agreement that the omission was intentional.

1985, c. 430, § 64.1-69.1; 1991, c. 441; 2012, c. 614.

§ 64.2-423. Repealed.

Repealed by Acts 2016, c. 266, cl. 2.

§ 64.2-424. When direction to purchase annuity binding on legatee.

If a testator directs in his will that an annuity sufficient to provide income of at least $100 per month be purchased for a legatee, the legatee who is to receive the income from the annuity shall not have the right to instead take the sum directed to be used to purchase such annuity, except to the extent that the will expressly provides for such right or that an assignable annuity be purchased.

Code 1950, § 64-68.1; 1956, c. 448; 1968, c. 656, § 64.1-69; 2012, c. 614; 2014, c. 532.

§ 64.2-425. Interest on pecuniary legacies.

A. Unless a contrary intent is expressed in or to be implied from a will or trust: (i) interest on a pecuniary legacy begins to run at the expiration of one year after the date of the death of the testator and (ii) interest on a pecuniary amount from a trust begins to run at the expiration of one year after the date on which the beneficiary is entitled to receive the pecuniary amount.

B. For the purposes of this section, a marital formula pecuniary bequest either outright to the testator's spouse or in trust for the benefit of such spouse, designed in either case to qualify for the benefit of the marital deduction allowed by the Internal Revenue Code, shall not be considered a pecuniary legacy entitled to interest at the expiration of one year after the death of the testator but, instead, shall share ratably with the residue of the estate in the income earned by the estate during the period of administration, unless a contrary intent is expressed in the will.

Code 1950, § 64-68; 1968, c. 656, § 64.1-68; 1999, c. 975; 2012, c. 614.

§ 64.2-426. Testamentary additions to trusts by testator dying on or after July 1, 1994, and before July 1, 1999.

A. A devise or bequest, including the exercise of a power of appointment, may be made by a will to the trustees of an inter vivos trust or testamentary trust, whether the trust was established by the testator, by the testator and another, or by some other person if:

1. In the case of an inter vivos trust, the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before or concurrently with the execution of the testator's will; or

2. In the case of a testamentary trust, the trust is identified in the testator's will and its terms are set forth in the valid last will of a person who has predeceased the testator and whose will was executed before or concurrently with the execution of the testator's will.

In either event, at the time the devise or bequest is to be distributed to the trustees at least one trustee of the trust shall be (i) an individual or (ii) an entity authorized to do a trust business in the Commonwealth. However, prior to distribution of the devise or bequest to the trustees, each nonresident individual or entity shall file with the clerk of the circuit court of the jurisdiction wherein the testator's will was admitted to probate, a consent in writing that service of process in any action against him as trustee or any other notice with respect to administration of the trust in his charge, may be by service upon the clerk of the court in which he is qualified or upon a resident of the Commonwealth at such address as he may appoint in the written instrument filed with the clerk. Where any nonresident qualifies pursuant to this subsection, bond with surety shall be required in every case unless at least one other trustee is a resident or the court in which the nonresident qualifies waives surety under the provisions of § 64.2-1411.

An entity not authorized to do a trust business in the Commonwealth at the time the devise or bequest is to be distributed shall not, in any case, be a trustee of such trust.

B. The inter vivos trust may be an unfunded trust, and for the purposes of this section:

1. An inter vivos trust shall be deemed established upon execution of the instrument creating such trust; and

2. An inter vivos trust may contain provisions whereby the amount of corpus to be allocated to any particular portion of the trust will be determined, measured, or affected by the adjusted gross estate of the settlor or testator for federal estate tax purposes, by the amount of the marital deduction allowable to the settlor's or testator's estate, by the amount of deductions or credits available to the estate of the settlor or testator for federal estate tax purposes, by the value of such estate for federal estate tax purposes, or by any other method, and that an unfunded trust shall not be deemed to be testamentary for that reason.

C. The devise or bequest shall not be invalid because (i) the trust is amendable or revocable or both by the settlor or any other person, either prior or subsequent to the testator's death, (ii) the trust instrument or any amendment thereto was not executed in the manner required for wills, or (iii) the trust was amended after the execution of the will or after the death of the testator.

D. Unless the testator's will provides otherwise, the property so devised or bequeathed:

1. Shall not be deemed held under a testamentary trust of the testator, but shall become a part of the corpus of the trust to which it is given or, if the will so specifies, the property shall become a part of any one or more particular portions of the corpus; and

2. Shall be administered and disposed of (i) in accordance with the terms of the trust as they appear in writing at the testator's death, including any amendments thereto made before the death of the testator, regardless of whether made before or after the execution of the testator's will, or (ii) if the testator expressly specifies in his will, as such terms are amended after the death of the testator.

E. In the event that the settlor or other person having the right to do so revokes or otherwise terminates the trust pursuant to a power to do so reserved in the trust instrument, and such revocation or termination is effected at a date subsequent to the death of a testator who has devised or bequeathed property to such trust, the revocation or termination shall be ineffective as to property devised or bequeathed to such trust by a testator other than the settlor, unless the testator's will expressly provides to the contrary.

F. The devise or bequest shall not be valid should the entire trust not be operative for any reason at the testator's death. If the devise or bequest is to augment only one or more portions of the trust, the devise or bequest shall not be valid should the trust not be operative for any reason as to such portion at the testator's death.

G. In any case in which the devise or bequest to the trustee of a trust fails to take effect by reason of the fact that there is no qualified trustee acting at the time the devise or bequest is to be distributed, or that one or more of the trustees then acting is an entity not authorized to do a trust business in the Commonwealth, the court having jurisdiction with respect to the probate of the will or the administration of the testator's estate, upon sufficient evidence of the existence of a trust estate for administration, independent of the testator's estate, and of the validity of the trust established by virtue of such separate written instrument, may determine that the trusts declared by such separate written instrument are the trusts upon which the devise or bequest is made to the same extent and with like effect as if such trust provisions had been extensively incorporated in the testamentary documents, and that such trusts do not fail for want of a qualified trustee to administer the trust estate so devised or bequeathed. The court may then grant such further and ancillary relief as the nature of the case may require, including the appointment of a qualified trustee to perform the trusts with respect to the estate so devised or bequeathed, and granting instruction and guidance to the trustee so appointed in the performance of his duties. Nothing herein shall be deemed to authorize any such trustee to be excused from any obligations of accounting or performance as are required by law of fiduciaries, nor to prevent the transfer of the trust estate to a trustee appointed by or qualified in a court of record in a foreign state in accordance with the provisions of § 64.2-706.

H. This section shall apply to any devise or bequest under the will of a decedent dying on or after July 1, 1994, and before July 1, 1999.

Code 1950, § 64-71.1; 1958, c. 450; 1962, c. 573; 1966, c. 538; 1968, c. 656, § 64.1-73; 1972, c. 332; 1982, c. 373; 1991, c. 343; 1992, c. 66; 1994, c. 562; 1995, c. 684; 1996, c. 680; 1999, c. 252; 2005, c. 935; 2012, c. 614.

§ 64.2-427. Testamentary additions to trusts by testator dying after June 30, 1999.

A. A will may validly devise or bequeath property, including by the exercise of a power of appointment, to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts or (ii) at the testator's death by the testator's devise or bequest to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.

B. Unless the testator's will provides otherwise, property devised or bequeathed to a trust described in subsection A is not held under a testamentary trust of the testator but it becomes a part of the trust to which it is devised or bequeathed, and shall be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.

C. Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.

D. Unless at least one trustee of the trust is an individual resident of the Commonwealth or an entity authorized to do a trust business in the Commonwealth, at the time the devise or bequest is to be distributed to the trust, the testator's personal representative shall not make any distribution to the trust until each nonresident individual or entity files with the clerk of the circuit court of the jurisdiction wherein the testator's will was admitted to probate, a consent in writing that service of process in any action against the trustee or any other notice with respect to administration of the trust in the trustee's charge may be by service upon a resident of the Commonwealth at such address as the trustee may appoint in the written instrument filed with the clerk. No further requirement shall be imposed upon any nonresident individual or entity as a condition to receiving the devise or bequest.

E. This section applies to a will of a testator who dies after June 30, 1999, and it shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting it.

1999, c. 252, § 64.1-73.1; 2012, c. 614.

§ 64.2-428. Distribution of assets by fiduciaries in satisfaction of pecuniary bequests or transfers in trust of pecuniary amount.

A. Where a will or trust agreement authorizes or directs the fiduciary to satisfy wholly or partly in kind a pecuniary bequest or transfer in trust of a pecuniary amount, unless the instrument shall otherwise expressly provide, the assets selected by the fiduciary for that purpose shall be valued at their respective values on the date of their distribution.

B. Whenever a fiduciary under the provisions of a will or other governing instrument is required to satisfy a pecuniary bequest or transfer in trust in favor of the testator's or donor's spouse and is authorized to satisfy such bequest or transfer by selection and distribution of assets in kind, and the will or other governing instrument further provides that the assets to be so distributed shall or may be valued by some standard other than their fair market value on the date of distribution, the fiduciary, unless the will or other governing instrument otherwise specifically directs, shall distribute assets, including cash, in a manner that is fairly representative of appreciation or depreciation in the value of all property available for distribution in satisfaction of such pecuniary bequest or transfer. This subsection shall not prevent a fiduciary from carrying out the provisions of the will or other governing instrument that require the fiduciary, in order to implement such a bequest or transfer, to distribute assets, including cash, having an aggregate fair market value at the date of distribution amounting to no less than the amount of the pecuniary bequest or transfer as finally determined for federal estate tax purposes.

C. Any fiduciary having discretionary powers under a will or other governing instrument with respect to the selection of assets to be distributed in satisfaction of a pecuniary bequest or transfer in trust in favor of the testator's or donor's spouse shall be authorized to enter into agreements with the Commissioner of Internal Revenue of the U.S. Department of the Treasury and other taxing authorities requiring the fiduciary to exercise the fiduciary's discretion so that cash and other properties distributed in satisfaction of such bequest or transfer in trust will be fairly representative of the appreciation or depreciation in value of all property then available for distribution in satisfaction of such bequest or transfer in trust, and any such agreement heretofore entered into after April 1, 1964, is hereby validated. Any such fiduciary shall be authorized to enter into any other agreement not in conflict with the express terms of the will or other governing instrument that may be necessary or advisable in order to secure for federal estate tax purposes the appropriate marital deduction available under the Internal Revenue Code, and to do and perform all acts incident to securing such deduction.

D. Where a will or trust agreement directs the fiduciary to satisfy a pecuniary or fractional bequest or transfer in trust of a pecuniary amount or fractional share in favor of the testator's or donor's spouse with amounts or assets having a value equal to the maximum marital deduction available under the Internal Revenue Code, the interest of such spouse shall vest immediately upon the testator's death in the case of a will, and upon the execution of the trust agreement in the case of a trust, regardless of when the exact amount of the bequest or transfer is finally determined.

Code 1950, § 64-71.2; 1966, c. 441; 1968, c. 656, § 64.1-74; 1978, c. 481; 2012, c. 614.

§ 64.2-429. Construction of trust provisions otherwise eligible for the election permitted under § 2056(b)(7) of the Internal Revenue Code.

If any trust created under a will or trust agreement made by a decedent dying after December 31, 1981, would qualify for the election specified in § 2056(b)(7) of the Internal Revenue Code but for (i) a direction that accrued income remaining in the hands of a trustee at the death of the surviving spouse of the decedent not be paid to the estate of the surviving spouse or (ii) an authorization to retain unproductive property as an asset of the trust, then, unless the decedent shall have specifically otherwise provided in the will or trust agreement by reference to this section, (a) all accrued and undistributed income of the trust at the death of the surviving spouse shall be paid to the personal representative of the surviving spouse as contemplated by the Uniform Principal and Income Act (§ 64.2-1000 et seq.) and (b) the surviving spouse shall have the right to require the trustee of the trust to make the trust assets productive of income, so as to render the trust eligible for the election provided in § 2056(b)(7) of the Internal Revenue Code.

This section shall apply to all wills and revocable trusts made by decedents dying after December 31, 1981, regardless of when the will or trust was made.

1984, c. 339, § 64.1-74.1; 2012, c. 614.

§ 64.2-430. Certain marital deduction formula clauses to be construed to refer to federal marital deduction allowable if decedent had died on December 31, 1981.

A. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death under a will executed before September 12, 1981, or a trust created before September 12, 1981, and such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, then such formula provision shall be construed as referring to the maximum amount of property eligible for the marital deduction as was allowable under the Internal Revenue Code as if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended to refer to the maximum marital deduction of the Internal Revenue Code in effect at the time of his death, provided that such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer specifically to an unlimited marital deduction or an amount qualifying for such deduction, or to otherwise manifest an intent to have the estate qualify for the unlimited marital deduction.

B. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death under a will executed before September 12, 1981, or a trust created before September 12, 1981, and such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, but no more than will reduce such federal estate tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, then such provision reducing such bequest to such amount necessary to reduce the federal tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, shall be construed as referring to a computation done as of December 31, 1981, that would have reduced the federal estate tax to zero if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended the computation to be made as of the date of death, provided that such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer to the federal estate tax on a date later than September 12, 1981.

C. The proceeding to determine whether the decedent intended that the computation under subsection A or B be made as of the date of death, rather than the earlier 1981 date, shall be filed within 12 months following the death of the testator or grantor. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.

1982, c. 622, § 64.1-62.1; 1983, c. 512; 1987, c. 504; 2012, c. 614.

§ 64.2-431. Certain powers of appointment construed to refer to federal gift tax exclusion in effect on date of execution.

If an instrument executed before September 12, 1981, provides for a power of appointment that may be exercised during any period after December 31, 1981, and such power of appointment is defined in terms of, or by reference to, the maximum amount of property qualifying for the gift tax exclusion under federal law, then such instrument shall be construed as referring to the maximum amount of property eligible for the annual gift tax exclusion as was allowable under the Internal Revenue Code in effect on the date of execution of such instrument provided that the instrument described has not been amended after September 12, 1981, to refer specifically to the federal gift tax exclusion available after December 31, 1981, or the amount qualifying for such exclusion.

1982, c. 622, § 64.1-62.2; 2012, c. 614.

§ 64.2-432. Certain formula clauses to be construed to refer to federal estate and generation-skipping transfer tax laws applicable to estates of decedents dying after December 31, 2009, and before January 1, 2011.

A. A will, trust, or other instrument of a decedent who dies after December 31, 2009, and before January 1, 2011, that contains a formula referring to the "unified credit," "estate tax exemption," "applicable exemption amount," "applicable credit amount," "applicable exclusion amount," "generation-skipping transfer tax exemption," "GST exemption," "marital deduction," "maximum marital deduction," "unlimited marital deduction," "inclusion ratio," "applicable fraction," or any section of the Internal Revenue Code relating to the federal estate tax or generation-skipping transfer tax, or that measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be deemed to refer to the federal estate tax and generation-skipping transfer tax laws as they apply with respect to estates of decedents dying in 2010 regardless of whether the decedent's personal representative or other fiduciary elects not to have the estate tax apply with respect to the estate. This provision shall not apply with respect to a will, trust, or other instrument that manifests an intent that a contrary rule shall apply.

B. The personal representative, trustee, other fiduciary, or any affected beneficiary under the will, trust, or other instrument may bring a proceeding to determine whether the decedent intended that the will, trust, or other instrument be construed in a manner other than as provided in subsection A. A proceeding under this section shall be commenced prior to January 1, 2012. In such a proceeding, the court may consider extrinsic evidence that contradicts the plain meaning of the will, trust, or other instrument. The court shall have the power to modify a provision of a will, trust, or other instrument that refers to the federal estate tax or generation-skipping transfer tax laws as described in subsection A to (i) conform the terms to the decedent's intention or (ii) achieve the decedent's tax objectives in a manner that is not contrary to the decedent's probable intention. The court may provide that its decision, including any decision to modify a provision of a will, trust, or other instrument, shall be effective as of the date of the decedent's death. A person who commences a proceeding under this section has the burdens of proof, by clear and convincing evidence, and persuasion in establishing the decedent's intention that the will, trust, or other instrument be construed in a manner other than as provided in subsection A.

C. For purposes of this section, interested persons may enter into a binding agreement to determine whether the decedent intended that the will, trust, or other instrument shall be construed in a manner other than as provided in subsection A, and to conform the terms of the will, trust, or other instrument to the decedent's intention without court approval as provided in subsection B. Any interested person may petition the court to approve the agreement or to determine whether all interested persons are parties to the agreement, either in person or by adequate representation where permitted by law, and whether the agreement contains terms the court could have properly approved. In the case of a trust, the agreement may be by nonjudicial settlement agreement pursuant to § 64.2-709. "Interested person" means any person whose consent is required in order to achieve a binding settlement were the settlement to be approved by the court.

2010, c. 238, § 64.1-62.4; 2011, c. 679; 2012, c. 614; 2013, c. 784.