2019 US Virgin Islands Code
Title 15 - Decedents' Estates and Fiduciary Relations
Part I - Decedents' Estates
Chapter 1 - Wills
§ 10. Election by surviving spouse regarding share

(a) Where a testator dies after the effective date of this Code, and leaves surviving a husband or wife, a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy, subject to the limitations, conditions and exceptions contained in this section.

• (1) In exercising the right of election herein granted a surviving spouse shall in no event be entitled to take more than one-half of the net estate of the decedent, after the deduction of debts, funeral and administration expenses and any estate tax, and the words “intestate share” wherever used in this section shall not be construed to mean more than one-half of such net estate.

• (2) Where the intestate share is over $2,500 and where the testator has devised or bequeathed in trust an amount equal to or greater than the intestate share, with income thereof payable to the surviving spouse for life, the surviving spouse shall have the limited right to elect to take the sum of $2,500 absolutely which shall be deducted from the principal of such trust fund and the terms of the will shall otherwise remain effective.

• (3) Where the intestate share of the surviving spouse in the estate does not exceed $2,500, the surviving spouse shall have such right to elect to take his or her estate share absolutely, which shall be in lieu of any provision for his or her benefit in the will.

• (4) Where the will contains an absolute legacy or devise, whether general or specific, to the surviving spouse, of or in excess of the sum of $2,500 and also a provision for a trust for his or her benefit for life of a principal equal to or more than the excess between said legacy or devise and his or her intestate share, no right of election whatever shall exist in the surviving spouse.

• (5) Where the will contains an absolute legacy or devise, whether general or specific, to the surviving spouse in an amount less than the sum of $2,500 and also a provision for a trust for his or her benefit for life of a principal equal to or more than the excess between such legacy or devise and his or her intestate share, the surviving spouse shall have the limited right to elect to take not more than the sum of $2,500 inclusive of the amount of such legacy or devise, and the difference between such legacy or devise and the sum of $2,500 shall be deducted from the principal of such trust fund and the terms of the will shall otherwise remain effective.

• (6) Where the aggregate of the provisions under the will for the benefit of the surviving spouse including the principal of a trust, or legacy or devise, or any other form of testamentary provision, is less than the intestate share, the surviving spouse shall have the limited right to elect to take the difference between such aggregate and the amount of the intestate share, and the terms of the will shall otherwise remain effective. In every estate the surviving spouse shall have the limited right to withdraw the sum of $2,500 if the intestate share is equal to or greater than that amount. Such sum shall, however, be inclusive of any absolute legacy or devise, whether general or specific. Where a trust fund is created for his or her benefit for life, such sum of $2,500 or any necessary part thereof to make up that sum shall be payable from the principal of such trust fund.

• (7) The provisions of this section with regard to the creation of a trust, with income payable for life to the surviving spouse, shall likewise apply to a legal life estate or to an annuity for life or any other form of income for life created by the will for the benefit of the surviving spouse. In the computation of the value of the provisions under the will, the capital value of the fund or other property producing the income shall be taken and not the value of the life estate.

• (8) The purported grant of authority in a will to an executor, administrator with the will annexed, or trustee, or the successor of any of them to—

  • (A) act without bond; or

  • (B) name his successor to act without bond; or

  • (C) sell assets of the estate upon terms fixed by him; or

  • (D) invest the funds of the estate in other than legal investments; or

  • (E) retain in the assets of the estate investments or property owned by a testator in his lifetime; or

  • (F) make distribution in kind; or

  • (G) make a binding and conclusive fixation of values of assets in the distribution thereof; or

  • (H) allocate assets either outright or in trust for the life of a surviving spouse; or

  • (I) conduct the affairs of the estate with partial or total exoneration from the legal responsibility of a fiduciary—

    shall not be deemed either singly or in the aggregate to give to a surviving spouse an absolute right of election to take his or her intestate share; but the court, notwithstanding the terms of the will, may, in an appropriate proceeding by the surviving spouse or upon an accounting, direct and enforce for the protection of the surviving spouse an equitable distribution, allocation or valuation of the assets, and enforce the lawful liability of a fiduciary, and may also make such other direction consistent with the provisions and purposes of this section as the court deems necessary for the protection of the surviving spouse.

(b) Where any such election shall have been made, the will shall be valid as to the residue remaining after the elective share provided in this section has been deducted and the terms of the will shall as far as possible remain effective.

(c) The right of election shall not be available to a spouse against whom or in whose favor a final decree or judgment of divorce recognized as valid by the law of the Virgin Islands has been rendered, or against whom a final decree or judgment of separation recognized as valid by the laws of the Virgin Islands has been rendered. Nor shall such right of election be available to a spouse who has procured without the Virgin Islands a final decree or judgment dissolving the marriage with the testator where such a decree or judgment is not recognized as valid by the law of the Virgin Islands.

(d) No husband who has neglected or refused to provide for his wife, or has abandoned her, shall have the right of such an election.

(e) No wife who has abandoned her husband shall have the right of such election.

(f) The election as herein provided may be made by the general guardian of an infant, when authorized so to do by the court, or may be made in behalf of an incompetent when authorized by the court.

(g) An election made under this section shall be made within six months from the date of the issuance of letters testamentary or, if letters testamentary have not been issued, from the date of the issuance of letters of administration with the will annexed, and shall be made by serving written notice of such election upon the representative of the estate personally or in such other manner as the court directs and by filing and recording a copy of such notice with proof of service in the court where such will was probated. The time to make such election may be enlarged before its expiration by an order of the court, for a further period of not exceeding six months upon any one application. If a spouse shall default in filing such election within six months after the date of issuance of such letters, the court may relieve the spouse from such default and authorize the making of such election within a period to be fixed by order, provided no decree settling the account of the fiduciary has been made and provided further that twelve months have not elapsed since the issuance of letters. Such an application for enlargement of time to elect or for relief from default in electing shall be made upon a petition showing reasonable cause and on notice given to such persons and in such manner as the court directs. A certified copy of any such order shall be indexed and recorded in the office of the recorder of deeds in the judicial division wherein any real property of the decedent is situated. The limitations in this section regulating the time within which an election shall be made are exclusive. No provision of law suspending or affecting the operation of rules of limitation shall be applicable to the time of making an election but the court may, in its discretion, permit an election to be made in behalf of an infant or incompetent spouse at any time up to but not later than the entry of the decree on the first judicial account of the permanent representative of the estate made more than seven months after the issuance of letters.

(h) Any question arising as to the right of election shall be determined by the court in a proceeding brought for that purpose after the service of citation upon the persons interested, or in a proceeding for the judicial settlement of the accounts of the representative of the estate.

(i) The husband or wife, during the lifetime of the other, may waive or release the right of election to take as against a particular last will, or as against any last will of the other spouse. A waiver or release of all rights in the estate of the other spouse shall be deemed to be a waiver or release of the right of election as against any last will. A waiver or release to be effective under this subsection shall be subscribed by the maker thereof and either acknowledged or proved in the manner required for the recording of a conveyance of real property.

• (1) executed before or after the marriage of the spouses affected; or

• (2) executed before, on, or after the effective date of this Code; or

• (3) unilateral in form, executed only by the maker thereof, or bilateral in form, executed by both of the spouses affected; or

• (4) executed with or without consideration; or

• (5) absolute or conditional.