2011 Code of Virginia
Title 64.1 WILLS AND DECEDENTS' ESTATES.
Chapter 3 Wills (64.1-45 thru 64.1-96.11)
64.1-62.1 Certain marital deduction formula clauses to be construed to refer to federal marital deduction all...


VA Code § 64.1-62.1 (2001 through Reg Session) What's This?

64.1-62.1. Certain marital deduction formula clauses to be construed to refer to federal marital deduction allowable if decedent had died on December 31, 1981.

A. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death (i) under a will executed before September 12, 1981, or a trust created before September 12, 1981, and (ii) such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, and further, (iii) such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer specifically to an unlimited marital deduction or an amount qualifying therefor, or otherwise to manifest an intent to have the estate qualify for the unlimited marital deduction, then such formula provision shall be construed as referring to the maximum amount of property eligible for the marital deduction as was allowable under the Internal Revenue Code as if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended to refer to the maximum marital deduction of the Internal Revenue Code in effect at the time of his death.

B. If property passes from the decedent or is acquired from the decedent by reason of the decedent's death (i) under a will executed before September 12, 1981, or a trust created before September 12, 1981, and (ii) such will or trust contains a formula providing that the spouse of the decedent is to receive the maximum amount of property qualifying for the marital deduction allowable under federal law, but no more than will reduce such federal estate tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, and further, (iii) such will or trust is not amended on or after September 12, 1981, and before the death of the decedent to refer to the federal estate tax on a date later than September 12, 1981, than such provision reducing such bequest to such amount necessary to reduce the federal tax to zero or any other pecuniary or fractional share of property determined with reference to the marital deduction, shall be construed as referring to a computation done as of December 31, 1981, that would have reduced the federal estate tax to zero if the decedent had died on December 31, 1981, unless the court shall find that the decedent intended the computation to be made as of date of death.

C. The proceeding to determine whether the decedent intended that the computation under subsection A or B be made as of the date of death, rather than the earlier 1981 date, must be filed within twelve months following the death of the testator or grantor, and not thereafter. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.

(1982, c. 622; 1983, c. 512; 1987, c. 504.)

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