Client Alert: Virginia Court of Appeals Rules on Entitlement to Elective Share for Separated Spouses
Date: January 7, 2026
- The Virginia Court of Appeals recently ruled, in the case of Teel v. Teel, on a dispute involving the elective share of a surviving spouse and allegations that such spouse abandoned the marriage.
- This ruling provides helpful guidance for how a Virginia court would resolve such a dispute.
- Under the Court of Appeals ruling, Sue Anderson Teel lost her right to a share of her late husband Gene “Bull” Atkins Teel’s estate due to intentional abandonment, pursuant to Virginia Code § 64.2-308.14(E).
- Despite being married since 1988 and never divorcing, the surviving spouse was found to have “willfully deserted” Bull, who left his estate to his brother.
- Regarding the elective share, under Virginia Code § 64.2-308.3(A), a surviving spouse can claim 50% of the marital property portion of the augmented estate (subject to the limitations and conditions contained in the Virginia Code), but this right is forfeited if the surviving spouse willfully leaves the marriage.
- The Virginia Court of Appeals employed a 2018 Supreme Court framework to assess the issue of abandonment, focusing on the surviving spouse's actions and intent.
- In this case, the evidence showed that the surviving spouse moved out, had minimal contact and engaged in a new relationship, indicating her intent to end the marriage.
- The case highlights the importance of documenting circumstances related to abandonment in estate planning.
In recent decision (Teel v. Teel), the Virginia Court of Appeals agreed with a lower court's decision that Sue Anderson Teel lost her right to a share of her late husband Gene “Bull” Atkins Teel’s estate because she intentionally left the marriage, according to Code § 64.2-308.14(E). Although they married in 1988 and never divorced, Bull died in March 2022, leaving a will that said he had been separated from Sue for many years, that she had “willfully deserted” and “abandoned” him and that he left nothing for her, giving everything to his brother, William Lee Teel, who became the executor. Sue filed in March 2023 to claim her share of the estate, but after a trial in September 2024, the court decided she couldn’t have it because she abandoned the marriage; the Court of Appeals agreed.
Under Virginia Code § 64.2-308.3(A), a surviving spouse has the right to claim 50% of the marital property if their partner dies while living in Virginia. This law was created to protect spouses from being left with nothing if their partner disinherits them, allowing them to choose between what was left to them or a calculated share of the estate (called an “elective share”).
The appellate court confirmed that a surviving spouse usually has the right to 50% of the marital property, but if they willfully leave the marriage, they lose all rights to an elective share. The court used a 2018 Supreme Court framework to decide if Sue ended the “usual” signs of marriage with the intent to leave, noting that mutual separation doesn’t stop an abandonment finding and intent can be shown indirectly. The court emphasized looking at the specific marriage’s typical pre-separation patterns rather than traditional duties, which can change over time. They focused on whether the surviving spouse showed a lack of support for the other spouse and the relationship. The court clarified that abandonment isn’t about fault, and whether the deceased spouse left the marriage doesn’t matter; only the surviving spouse’s actions are considered.
Evidence included Sue moving out after 2016, having little contact except for exchanging dogs they adopted together, playing a minimal role in Bull’s care during his illness compared to friends and family, and most importantly, having a public, long-term romantic and sexual relationship with someone else soon after separating, without an agreement for an open marriage. The court found plenty of evidence that Sue intended to end the marriage, turning it into a friendship, and thus gave up her right to a share of the estate. For estate planners and lawyers, this case shows that claims for a share of the estate can fail if the surviving spouse’s actions show intentional abandonment through long separation, new exclusive relationships, and reduced marital support, even without a divorce and despite shared finances. Practically, people in long separations should expect close examination of their daily marital signs and caregiving roles, and those making wills should document circumstances related to abandonment to support their intentions and provide clear evidence.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.