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Estate Administration Statutory Allowances

Virginia has established specific allowances for family, exempt property and homestead allowances, which have priority over all claims other than administrative expenses.1  Statutory allowances are debts of the estate rather than debts of the decedent, and therefore, the allowances are entitled to priority over a federal tax lien.2  In order to receive a statutory allowance, the claimant must file a written election to take the allowance, acknowledged before a notary public, with the clerk of the court on or before one year from the decedent’s date of death.3

Statutory allowances are filed directly with the clerk of the court and the commissioner of accounts has no jurisdiction over such filing.  Those needing assistance are advised to seek legal counsel.

The Virginia Code permits a family allowance up to the amount of $24,000 (or monthly installments of $2,000 for up to one year).4 The surviving spouse (or minor children if no spouse survives) is entitled to a reasonable family allowance from the estate, not to exceed $24,000.5  The personal representative may determine the actual amount of the family allowance, not to exceed $24,000.6  If a person is aggrieved by that determination, the sole recourse is to petition the circuit court for appropriate relief.7

Second, the exempt property allowance entitles the surviving spouse to value not exceeding $20,000, in excess of any security interest therein, in the tangible personal property of the estate.8  If there is not sufficient personal property to make up the $20,000, the claimant may receive other assets of the estate up to the maximum allowance amount.

Third, the surviving spouse is entitled to a homestead allowance of $20,000;9 however, § 64.2-311 of the Virginia Code, which establishes the homestead allowance, states that “[t]he homestead allowance is in lieu of any share passing to the surviving spouse or minor children by the decedent's will or by intestate succession.” In other words, by taking the homestead allowance the spouse will no longer be permitted to share in the estate as an heir and the remaining balance in the estate will pass to the decedent’s creditors and remaining heirs at law.10

Finally, Virginia also permits the surviving spouse of a decedent to claim an elective share in the decedent’s estate within six months of the later of the probate of the will or qualification of an administrator.  The commissioner of accounts has no jurisdiction over determination of an elective share; the sole recourse is to petition the circuit court for appropriate relief.11


1  Va. Code Ann. §§ 64.2-309; 64.2-310; 64.2-311; and 64.2-528.

2  Estate of Igoe v. U.S.,717 S.W.2d 524 (Mo. 1986). See IRM

3  Va. Code Ann. § 64.2-313. An election for an allowance filed more than one year after death is not effective. See Estate of Wisemiller, 2007 Va. Cir. LEXIS 192 (Fairfax, 2007).

4  Va. Code Ann. § 64.2-309 (effective July 1, 2014; prior thereto the limit was $18,000).

5  Id.

6  Va. Code Ann. § 64.2-312.

7  Va. Code Ann. § 64.2-312.B.

8  Va. Code Ann. § 64.2-310.A (effective July 1, 2014; prior thereto the limit was $15,000). 

9  Va. Code Ann. § 64.2-311 (effective July 1, 2014; prior thereto the limit was $15,000).

10  See Johnston v. Rosenthal, 31 Va. Cir. 368 (1993).

11  Virginia Code §64.2-302.



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