Litigation

Post-separation conduct is relevant to a claim of actual abandonment and the determination of the elective share of the deceased spouse's estate. Purce v. Patterson, Record No. 062368, Supreme Court of Virginia, Jan. 11, 2008.

Marrill and Dorothy were married in July, 1988. Dorothy's health was not good, and friends and neighbors often took her to doctors, cooked meals and cleaned her home. Marrill did not visit Dorothy in the hospital during her illnesses and did not care for her when she was home. In 1997, Dorothy obtained a protective order against Marrill based upon physical abuse. Thereafter, the parties resumed cohabitation. In June 2000, the parties agreed that Dorothy would vacate the marital residence. Dorothy relocated to New Jersey to reside with her daughter. Marrill was unaware that Dorothy relocated to New Jersey and never called or visited her. In January 2003, Dorothy filed for divorce. A divorce decree was never issued and the parties were legally married at the time of Dorothy's death. Dorothy brought into the marriage rental property that she owned. Marrill was retired at the time of the marriage and did not participate in the operation of the rental properties and did not provide any financial support to Dorothy after she vacated the marital residence. Dorothy's daughter, Vanessa, commenced an action seeking a declaration that Marrill willfully abandoned Dorothy so that he was not entitled to an elective share of her estate. The trial court held that Marrill willfully abandoned his wife and was, therefore, not entitled to an elective share of Dorothy's estate. The Supreme Court of Virginia agreed. It held that Marrill's post-separation conduct was relevant under Virginia Code Section 64.1-163(A), which states that the conduct of abandonment continues until the death of the abandoned spouse. It further held that the mutual decision to cease cohabitiation and Dorothy's divorce petition were not dispositive, and more relevant was Marrill's conduct and his intent. It held that Marrill's conduct showed a lack of support for Dorothy and the marital relationship.