One of the major issues in Virginia law during the past decade has been the matter of property rights upon the termination of a marriage by divorce. Now that the concept of equitable distribution has been introduced into Virginia law in order to bring about a greater degree of fairness into this area, it is time to direct the focus of law reform to a parallel issue interspousal property rights when a marriage is terminated by death. The importance of this issue to large numbers of Virginians is obvious when one stops to realize that, notwithstanding the dismal statistics on the increasing incidence of divorce, the typical Virginia marriage still continues until it is dissolved by the death of one of the parties. The exposure of this majority of married persons to potential economic problems is also obvious when one stops to realize that, under Virginia law, a surviving spouse has absolutely no rights in the deceased spouse's estate (except as the deceased spouse has allowed them to be created). The purposes of this article are (i) to demonstrate the accuracy of this assertion concerning the lack of rights of a surviving spouse under Virginia law, (ii) to call attention to a serious internal conflict between this Virginia law and Virginia's announced public policy concerning the institution of marriage, and (iii) to urge that the recently aborted legislative study dealing with interspousal property rights at death be resurrected in the 1985 session of the General Assembly.

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Publication Date

Winter 1984