SD9 - Studying Virignia Laws as it Affects Transfers of Property Upon Death

  • Published: 1984
  • Author: General Assembly Joint Subcommittee
  • Enabling Authority: Senate Joint Resolution 51 (Regular Session, 1983)

Executive Summary:
INTRODUCTION

By resolution sponsored by Senator Evelyn M. Hailey and passed by the 1983 Session, the General Assembly called for a study of Virginia law as it affects transfers of property upon death. The purpose of the study was to determine whether the rights and interests of the surviving spouse are adequately protected (Senate Joint Resolution No. 51 - Appendix A). Specifically, the resolution called for the creation of a twelve-member joint subcommittee to study (i) the effects of the current dower and curtesy provisions during life and upon the death of a spouse, (ii) the concept of providing a surviving spouse with a right to claim an elective share in an augmented estate as a means to protect a surviving spouse from disinheritance or depletion of the probate estate by the decedent, and (iii) the various means of affording protections to a surviving spouse as provided in the model acts pertaining to the probate of wills and distribution of estates.

Senators William F. Parkerson, Jr., Dudley J. Emick, Jr. and Wiley F. Mitchell, Jr., were appointed by the Senate Committee on Privileges and Elections to serve as members of the joint subcommittee. Delegates J. Samuel Glasscock, Clinton Miller, Thomas W. Moss, Jr., W. Tayloe Murphy, Jr., and Mary Sue Terry were appointed by the Chairman of the House Committee for Courts of Justice. Additionally, two citizen members with experience in the area of wills, trusts and estates were appointed by the Senate Committee on Privileges and Elections and two citizen members with similar experience were appointed by the Speaker of the House of Delegates. The four citizen members were: Carle E. Davis, Esquire, and J. William Gray, Jr., Esquire, of Richmond, Carroll Kem Shackelford, Esquire, of Orange Virginia, and Willis A. Woods, Esquire, of Wytheville, Virginia. Delegate Murphy was elected chairman of the joint subcommittee; Mr. Woods was elected vice-chairman.

SUMMARY

Following a comprehensive review of the current provisions of Virginia law governing the disposition of property upon death and the various alternatives available to protect a surviving spouse by providing certain minimum interests in property upon the death of the other spouse, the joint subcommittee makes the following findings and recommendations:

1. That various methods are used to transfer or hold title to property during life which exempt such property from inclusion in the probate estate, thereby restricting the surviving spouse's rights of election upon renunciation.

2. That because individuals are less likely to hold a major portion of their wealth in real property, a surviving spouse's dower or curtesy interest does not attach to a significant portion of the decedent's assets.

3. That the laws pertaining to dower and curtesy are confusing and in some cases inconsistent and may, due to the fee interest created, cause significant titling problems in the future.

4. That in those rare situations where a surviving spouse is not adequately provided for during the life or upon the death of the other spouse, the laws pertaining to dower and curtesy and renunciation do not afford sufficient minimum protections for the survivor.

5. That the issues involved in any revision of current law in this area are extraordinarily complex and, therefore, a majority of the joint subcommittee believes that the study of these issues should be continued with additional input and participation from various experts in the field.