Virginia Code §64.2-308 provides that a spouse who willfully deserts and abandons his or her spouse loses his or her statutory rights under intestate succession, and rights to claim an elective share, or to claim exempt property, the family allowance, or the homestead allowance. By implication, an estranged spouse who has not willfully deserted or abandoned his or her spouse may still enjoy the legal rights of a surviving spouse in the estate of the deceased spouse. What about the rights of an estranged spouse who signs a written separation agreement with the typical general waiver of claims found in Virginia?
The Supreme Court of Washington held that such a waiver did terminate the spouse’s rights in a case of first impression for that state, In the Matter of the Estate of Michael Petelle, No: 97463-02, writ granted 451 P.3d 334 (2019) affirming the published decision of its court of appeals. While the State of Washington, a community property state, differs from the Commonwealth of Virginia, an equitable distribution state, in marital property rights, the opinion may still provide persuasive authority in Virginia, as Washington nevertheless allows couples to alter the 50-50 division of marital property by a written separation agreement.
In contrast to Virginia’s course of descents in Virginia Code §64.2-200, the State of Washington in its RCW 11.04.015, gives a surviving spouse all of the net community estate, but only three quarters of the net separate estate if the decedent has surviving parents (A surviving spouse’s share in Virginia is not affected by surviving parents of the decedent). The surviving estranged spouse in the Petelle case attempted to realize this statutory inheritance by qualifying as administrator and probating her deceased husband’s estate until she was stopped by the decedent’s mother. While separated, the spouses in Petelle had signed a comprehensive, written separation agreement which included a general waiver of claims, as is typical in Virginia. Although the general express waiver did not specifically mention rights under intestate succession, the Supreme Court noted that the separation agreement included a provision that the agreement was a full and final settlement of all marital and property rights, as is also typical in Virginia separation agreements. Further, the court noted that the rights to intestate succession is a result of marital status, which would be encompassed in the waiver of all marital and property rights. Finally, the court noted that the separation agreement included a provision that the agreement would survive the death of either party and be enforceable by heirs or legal representatives of the estate, also typical in Virginia separation agreements. The court did not accept the surviving spouse’s arguments that she could only lose her rights through the disclaimer process or that the alleged reconciliation of the parties restored her statutory rights. The court concluded by restating its prior decision that a general waiver was sufficient to extinguish rights, without specifically listing each and every right waived.