05/13/2026
Most people assume that if something would be considered separate property in a divorce, it must also be protected from a surviving spouse after death.
Nope.
In Virginia, divorce and death follow two very different sets of rules.
Equitable distribution in divorce looks at marital property, separate property, and hybrid property under Virginia Code § 20-107.3.
But after death, the elective share rules under Virginia Code §§ 64.2-308.1 through 64.2-308.15 look at something very different—the augmented estate and what was part of the marital economic partnership.
That means assets like:
• a premarital business
• inherited real estate
• revocable trust assets
• TOD and POD accounts
• jointly held property
may still be part of the conversation even if they would have been treated differently in divorce.
A trust alone does not automatically solve that.
Neither do beneficiary designations.
And “I left everything to the kids” is usually not enough.
This comes up all the time in second marriages, blended families, and business succession planning.
This week in my ABCs of Estate Planning series:
D is for Death and Divorce
I’m breaking down how Virginia elective share rules actually work and why planning based on divorce assumptions can create expensive surprises later.
Read the full article here: https://blog.bowmanfirm.com/virginia-elective-share-marital-property/
Virginia elective share rules are very different from marital property in divorce. Learn how augmented estate laws affect surviving spouse inheritance rights.