Although a woman left the marital home six weeks before husband died, and moved in with her daughter to avoid her terminally ill husband’s pressure to sign documents reducing her property rights, a Shenandoah County Circuit Court says she did not abandon husband and is not disqualified under Va. Code § 64.2-310 from an election to take a homestead allowance as a surviving spouse.
Wife left the marital home on June 28, 2016, and went to reside with a daughter. Husband had presented her with legal documents and demanded that she sign same. From the testimony, I have determined that the legal documents would have conveyed the parties’ jointly owned marital home to husband and, by will, he would have left his estate in trust with provisions for maintenance of wife during her lifetime with the remainder passing to his family members. It is my understanding that husband’s sister was named trustee and it appears the relationship between the sister and the wife was somewhat strained even before this litigation. Wife refused to sign the documents and left the marital home so she would not succumb to husband’s pressure. Husband died on Aug. 8, 2016.
During the six-week interval between wife leaving and husband’s death, sister took care of husband for the most part, making sure he received appropriate health care. During this time, wife and husband talked by telephone on a number of occasions, usually discussing terms for wife’s return to the marital home. There was no personal contact between them; however, wife attempted to see husband in the nursing home on several occasions but declined each time to enter his room when she discovered that his family members were present. One of her daughters encouraged her to divorce husband, but wife refused, stating that she loved him and wanted to return home. She had taken some articles of clothing, and returned to retrieve more, but took no other personal property.
The Supreme Court of Virginia, in Purce v. Patterson, 275 Va. 190 (2008), used the word “abandonment” to mean a termination of the normal indicia of a marital relationship combined with an intent to abandon the marital relationship.
Here, the parties’ separation was for a relatively short period of time, there were telephone conversations wherein the parties discussed the terms upon which wife would return to the marital home and there were attempts by wife to visit husband in the nursing home, even though they were arguably half-hearted. Also, wife expressly rejected her daughter’s suggestion that divorce be considered and affirmatively expressed her love for husband. These circumstances do not constitute abandonment of the marital relationship as defined in Purce.
I hold that wife is not barred from making the stated elections and the co-executors must act in accordance with this ruling.
Phillips v. Good (Hupp) No. CL 16- 27, Nov. 22, 2016; Shenandoah County Cir.Ct.; William B. Allen III, Michael J. Melkersen for the parties. VLW 016-8- 129, 3 pp.s