A surviving spouse in Virginia is entitled to three statutory allowances that most families have never heard of, worth as much as $55,000 on top of whatever she actually inherits. Until July 1 of this year, the clock to claim them started running the day her husband died.
That is the part that failed people. Grief takes a few months. A contested will takes longer. A missing original, an out-of-state executor, a house that has to sell before anyone will serve — any one of them can push the appointment of a personal representative past the first anniversary of the death. Families walked into the clerk's office in month thirteen and learned they were late for a deadline nobody told them about.
Virginia fixed it. Effective July 1, 2026, under House Bill 306 (2026 Acts of Assembly, ch. 381), the one-year clock on these allowances now runs from the later of two events: the admission of the will to probate, or the qualification of an administrator in an intestate estate. Not the date of death.
What the Three Allowances Actually Are
They are not one benefit with three names. They stack differently, and the difference matters.
The family allowance under Virginia Code section 64.2-309 is money out of the estate for the maintenance of the surviving spouse and any minor children during administration. It can be paid as a lump sum up to $30,000, or in installments up to $2,500 a month for one year. It has priority over every claim against the estate.
Exempt property under section 64.2-310 gives the surviving spouse up to $25,000 in household furniture, automobiles, furnishings, appliances, and personal effects, free of any security interests. If the estate does not hold $25,000 of that kind of property, she is entitled to other estate assets to make up the difference.
The homestead allowance under section 64.2-311 is $25,000, but it behaves differently. It is in lieu of what passes to her by will or intestacy, not in addition to it. If she inherits $8,000, the homestead allowance tops her up to $25,000. If she inherits $200,000, it adds nothing.
So the family allowance and exempt property sit on top of her inheritance. The homestead allowance is a floor underneath it.
Why the Old Deadline Failed the Families Who Needed It Most
Marlene's husband died in Virginia Beach in March. His brother filed a challenge to the will, and no personal representative qualified in the circuit court until June of the following year — fifteen months after the death.
Under the old rule, Marlene's window closed before anyone had the legal authority to pay her a dollar. Under the rule that took effect this July, her year begins at qualification.
Notice who the old deadline actually punished. Not the organized estate that opened in week three. It punished the contested estate, the estate with out-of-state heirs, and the estate where the surviving spouse was the one least equipped to press her own claim. The allowances exist precisely for households where money is tight while the estate is tied up, and those are the households where probate tends to move slowest.
The Trade the Legislature Made for Real Estate Buyers
The new law did not move every deadline. It moved the election deadline while protecting people who buy land out of an estate.
Section 64.2-313 still provides that the title of a bona fide purchaser who acquired real estate without notice of the election is unaffected, unless the election was recorded in the clerk's office of the circuit court where the land lies within one year after the decedent's death.
Read that as two clocks. The right to elect now runs from probate or qualification. The ability to reach real property that has been sold to an innocent buyer still runs from the date of death. If real estate is part of the picture and there is any chance it will be sold, record the election within a year of death regardless of how long probate takes.
Does This Change Your Estate Plan?
Directly, no. It changes what happens when a plan does not do its job.
The amounts did not change. Who qualifies did not change. A waiver signed in a premarital or marital agreement still binds under section 64.2-314, and the homestead allowance can also be waived by a signed writing that mentions it in conspicuous language. And none of this helps if no one ever opens the estate at all, because the new clock does not start until someone qualifies.
Here is the question worth asking instead. Why would your spouse ever need a $30,000 court allowance to pay the power bill while your estate is administered? Usually the answer is that assets were titled in one name, no trust was funded, and liquidity got locked behind a probate docket. A funded revocable trust, correct beneficiary designations, and a joint account that actually works do more for a surviving spouse in the first ninety days than any statutory allowance.
The allowances matter most in the situation nobody plans for: an insolvent estate. When the medical bills, the credit cards, and a Medicaid estate recovery claim exceed what is there, the family allowance and exempt property still come first, ahead of the creditors. That priority is the whole point, and it is why the deadline mattered.
Where This Sits Between Your Advisors
This is a probate rule, but the reason a family misses it is almost never legal. It is that the estate attorney, the person holding the account statements, and the family member doing the actual work were never in the same conversation.
We run estate administration in the same building as the tax and wealth work, which means the person who knows what the estate owes is not three phone calls away from the person who knows what it owns.
If you are administering an estate in Hampton Roads right now, or you are a surviving spouse who was told a year ago that you had missed your window, that answer may have changed as of July 1. Let's talk. Schedule a consultation and we will look at your dates.