Legal Briefs

Q. Does a Last Will and Testament transfer all of my assets at my death?

A. No – the following assets will not pass in accordance with a Last Will and Testament:

  1. Assets held in a trust;
  2. Assets titled to pass to a co-owner or designated survivor upon death i.e. property held as tenants by the entirety, joint tenants with the right of survivorship, designated as POD (payable on death) or TOD (transfer on death), etc.
  3. Assets with a beneficiary designation, i.e. life insurance, IRA, 401K, etc. (Unless you have named your estate as your beneficiary on the asset’s beneficiary designation form – most estate planners do not recommend that you name your estate as your beneficiary).
Q. How can I ensure that my pet will be cared for after my death or during my disability?

A. Failing to properly provide for your pet’s care could have drastic consequences and possibly result in euthanasia. Virginia laws are in place to assist you in preventing this from happening. Pets in Virginia are considered tangible personal property and can be given to a designated pet caregiver in the Bequest section of your Last Will and Testament. Consider giving the caregiver either a bequest of cash with the instruction that the cash be used to care for your pet or establish a trust for the benefit of your pet. A Last Will and Testament does not provide any protection for your pet during your lifetime. Who will care for your pet if you are too sick, disabled or incompetent? A durable Power of Attorney that grants authority to your designated pet caregiver to care for your pet and pay for the care from your financial resources will protect your pet during your lifetime.

Q. How can I ensure that my Power of Attorney will be accepted by a third party?

A. Va. Code § 64.2-1618(A) provides as follows:

  1. A person shall either accept an acknowledged power of attorney or request a certification, a translation, or an opinion of counsel under subsection C of § 64.2-1617 no later than seven business days after presentation of the power of attorney for acceptance;
  2. If a person requests a certification, a translation, or an opinion of counsel under subsection C of § 64.2-1617, the person shall accept the power of attorney no later than five business days after receipt of the certification, translation, or opinion of counsel; and
  3. A person may not require an additional or different form of power of attorney for authority granted in the power of attorney presented. Of course rule number one is to draft your power of attorney to ensure that your agent has the authority to accomplish all of your estate planning goals.


Q. Should my estate plan designate the same person as my minor child’s Guardian and Trustee?

A. A minor child’s Guardian is legally responsible for the care and management of the person of the child whereas the Trustee is legally responsible for the care and management of trust property administered for the benefit of the child. There will be very little oversight or ability to detect mismanagement if your child’s Guardian is also the Trustee. Even if the Guardian/Trustee is completely trustworthy you may wish to minimize the risk of mismanagement by naming an independent third party.


 Q. My spouse signed an agreement to pay me monthly spousal support until my death – is there any way I can lose my support prior to my death?

A. Yes. Virginia law supplies default duration provisions unless specific duration terms regarding death, remarriage and cohabitation are included in the agreement.

Virginia Code Section 20-109D states that “unless otherwise provided by stipulation or contract, spousal support and maintenance shall terminate upon the death of either party or remarriage of the spouse receiving support.” Consequently, your spousal support will terminate upon the death of the payer spouse and upon your remarriage unless your agreement contains clear and express language evincing the intent that spousal support will continue after the payer spouse’s death and your remarriage.

Virginia Code Section 20-109A states that “upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable. Consequently your former spouse can petition the court to terminate your support in the event of your cohabitation in accordance with the statute.

Previous court rulings indicate that the following examples of spousal support provisions containing only implied terms will probably not be sufficient to overcome the termination provisions of Virginia Code Section 20-109:

  1. Husband shall pay spousal support to Wife in the sum of $100 per month for a period of 5 years.
  2. Husband shall pay spousal support to Wife in the sum of $100 per month for a period of 5 years and said spousal support cannot be terminated for any reason.
  3. Husband agrees to pay Wife spousal support of $100 per week until Wife’s death.
  4. Husband shall make monthly spousal support payment to Wife of $100 for seven years but if either Husband or Wife dies before the end of the seven year period, then the obligation for support and maintenance by the Husband to the Wife shall cease.
  5. Until such time as the child of the parties attains the age of 18 years or graduates from high school, whichever shall last occur, Husband agrees to pay Wife as spousal support the sum of $100 per week. Thereafter, Husband agrees to pay Wife the sum of $200 per week as spousal support until the child of the parties attains the age of 23 years or completes 4 years of college education, whichever event shall first occur.
  6. Husband shall pay spousal support to Wife of $100 per week; provided, however, that in the event Wife should pay in full the first lien deed of trust indebtedness owed against the former marital home prior to her re-marriage, then the weekly amount to be paid by Husband to Wife as spousal support shall be re-negotiated or set by the Court if the parties cannot agree.


Q. Are the beneficiary designations naming my former spouse as my beneficiary automatically revoked by my divorce?

A. No – if you participate in a federal plan and you fail to change the beneficiary in accordance with the federal plan’s procedures and instructions, the beneficiary designation on record will be enforced. Consequently if your former spouse is still listed as your beneficiary on your federal retirement plan after your divorce, he or she will receive the benefit upon your death regardless of any waiver of interest in an agreement or termination of interest by the divorce.