2025 Session Last amended: 2016 session

§ 524.2-215 — Surviving Spouse Receiving Medical Assistance

Plain-Language Summary

This section sets special rules that apply when a surviving spouse is receiving medical assistance (Medicaid) under chapter 256B at the time the other spouse dies. Before the estate closes, the surviving spouse (or their personal representative, guardian, or conservator) may claim the elective share or statutory homestead rights, or ask the court for more time to do so. If the elective share would give the surviving spouse more than the will or intestacy provides, the guardian or conservator must claim it, and a prior waiver of these rights does not block them unless there is a valid antenuptial (prenuptial) agreement.

Practical Notes
This section protects a surviving spouse who is on medical assistance by making sure someone (the spouse, a personal representative, or a court-appointed guardian or conservator) can still capture the larger of the elective share or what the estate otherwise provides. A guardian or conservator does not need a court order to take the elective share when it yields a greater amount, and an earlier waiver of spousal rights generally will not stand in the way, the main exception being a valid prenuptial agreement.