October 21, 2015
By declining to issue a writ of certiorari to the appeal filed in Walden v. Akers, Record No. 150861, the Virginia Supreme Court effectively affirmed the favorable outcome in an estate case decided by the Nelson County Circuit Court. The question raised in the petition for an appeal involved whether certain assets were properly excluded from a decedent’s estate. “This case dealt with the distinction between executed and executory provisions of a marital agreement following a reconciliation by the spouses and its interplay with Virginia’s elective share and augmented estate statutes,” said Stephen Strosnider, who served as trial and appellate counsel on behalf of decedent’s sole heir.
Although the Virginia Court of Appeals issued an opinion regarding executory provisions in marital agreements in Yeich v. Yeich, 11 Va. App. 509 (1990), that case did not answer the question of whether a waiver of elective share claims as to specific property transferred pursuant to a marital agreement is an executory (yet to be fully performed) waiver. “We were pleased that the trial court accepted precedent from outside of Virginia which illustrated the wisdom of leaving such transfers in place,” said Strosnider.