The 1986 General Assembly may be remembered as much for what it did not do as for what it did. Carried over into the next session was House Bill 810, which would have abolished dower and curtesy in favor of a statutory share for the surviving spouse in the deceased spouse's estate. Of course, passage of this bill would have ushered in significant change in the practice of decedents' estates. Significantly, passage of the bill also would have legislatively overruled recent judicial and legislative activity which has created the sole and separate estate, for both female and male, allowing circumvention of the surviving spouse's claim of curtesy or dower. Many believe House Bill 810 is a long-awaited change whose time has come, but it must wait at least one more year. Of those bills which became law, most noteworthy was House Bill 207. Virginia Code ("Code") section 36-91(c) now provides that group homes, family care homes, or foster homes wherein no more than six physically handicapped, mentally ill, mentally retarded or developmentally disabled persons reside, with or without one or more resident counselors or staff personnel, shall be considered single family residences for the purpose of interpreting restrictive covenants executed after July 1, 1986.4 This legislation was in direct response to Omega Corp. v. Malloy a 1984 Virginia Supreme Court decision which upheld the trial court's determination that a group home for the mentally retarded does not constitute a "single-family use." A key finding in the case was that the presence of a counselor living in the home converted the residence into a facility.
W. Wade Berryhill, Property, 20 U. Rich. L. Rev. 925 (1986).