Does the Virginia real-property tax exemption for surviving spouses of service members killed in action apply if the death happened before 2015?

Plain-English summary

In November 2014, Virginia voters approved a constitutional amendment authorizing a real-property tax exemption for surviving spouses of U.S. armed-forces members killed in action. Implementing legislation took effect January 1, 2015, codified at § 58.1-3219.9. The Commissioner of the Revenue for Newport News asked whether a surviving spouse could claim the exemption when her service-member spouse had been killed before January 1, 2015.

The AG answered yes. The constitutional language was explicit that the exemption "applies regardless of whether the spouse was killed in action prior to the effective date of this subdivision," subject only to the rule that no exemption was available for any tax period before the effective date. The implementing statute was consistent with that constitutional command. The "January 1, 2015" date limited only the tax years the exemption applies to, not the date of death that triggers a spouse's eligibility.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The constitutional and statutory framework around veteran-related property tax exemptions in Virginia has been amended on several occasions since 2015. Surviving spouses considering an application should verify the current text of § 58.1-3219.9, the constitutional provisions in Article X, and the current application procedures used by their local commissioner of the revenue.

Background and statutory framework

Article X, § 6-A(b) of the Virginia Constitution, as added by the 2014 amendment, authorized the General Assembly to exempt from taxation the real property of the surviving spouse of any U.S. armed-forces member who was killed in action as determined by the Department of Defense, where the spouse occupies the property as a principal residence. The amendment said the exemption ceased on remarriage and could be carried with the spouse to a different principal residence, with no requirement that the spouse have resided in Virginia at the time of the member's death.

The language at the center of the dispute was: "This exemption applies regardless of whether the spouse was killed in action prior to the effective date of this subdivision, but the exemption shall not be applicable for any period of time prior to the effective date."

The implementing statute, codified at § 58.1-3219.9, became effective January 1, 2015. It exempted "the real property described in subsection B of the surviving spouse (i) of any member of the armed forces of the United States who was killed in action as determined by the United States Department of Defense and (ii) who occupies the real property as his principal place of residence." Where the service member was killed after January 1, 2015, the exemption was to begin on the date of the killing.

The AG applied two longstanding canons of constitutional interpretation. From Town of Madison v. Ford, 255 Va. 429 (1998): "If a constitutional provision is plain and unambiguous, courts do not construe it, but apply it as written." From Hollywood Cemetery Co. v. Commonwealth, 123 Va. 106 (1918): if the intention is manifest from the language used and leads to no absurd conclusion, courts must give the provision the effect clearly intended. Because the constitutional text expressly addressed pre-effective-date deaths, the AG read the implementing statute consistently with it.

Common questions

Q: Whose deaths did the opinion cover?
A: At the time of the opinion, a surviving spouse could qualify regardless of when the service member was killed in action, provided the other statutory requirements were met. The exemption simply could not be claimed for any tax year before January 1, 2015.

Q: What was the practical effect on a long-time widow whose spouse died decades earlier?
A: Under the AG's reading, a surviving spouse whose service-member spouse had been killed long before 2015 could begin claiming the exemption starting with tax year 2015. The opinion did not allow refunds or relief for earlier tax years.

Q: Did the spouse have to live in Virginia at the time of the death?
A: No, the constitutional text expressly removed any residency-at-time-of-death requirement. The exemption attached to the spouse's current principal residence in Virginia.

Q: What happened if the surviving spouse remarried?
A: Both the constitutional provision and the implementing statute provided that the exemption ceased on remarriage.

Citations and references

Statutes and constitutional provisions:

• Va. Const. art. X, § 6-A(b) (real-property tax exemption for surviving spouses of service members killed in action)
• Va. Const. art. XII, § 1 (procedure for constitutional amendments)
• Va. Code Ann. § 58.1-3219.9 (implementing statute)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)
• 2014 Va. Acts ch. 757 (implementing legislation)

Cases:

• Town of Madison v. Ford, 255 Va. 429 (1998)
• Hollywood Cemetery Co. v. Commonwealth, 123 Va. 106 (1918)
• Terry v. Mazur, 234 Va. 442 (1987)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/15-056_Bele.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General
Mark R. Herring, Attorney General

December 18, 2015

The Honorable Priscilla S. Bele
Commissioner of the Revenue
City of Newport News
2400 Washington Avenue
Newport News, Virginia 23607

Dear Ms. Bele:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the real property tax exemption provided for in Article X, § 6-A(b) of the Virginia Constitution and § 58.1-3219.9 of the Code of Virginia applies to the surviving spouses of members of the armed forces killed in action prior to January 1, 2015.

Applicable Law and Discussion

In November 2014, citizens of the Commonwealth approved a constitutional amendment authorizing the General Assembly to provide by general law for a real property tax exemption for the surviving spouses of members of the armed forces who are killed in action. In accord with this amendment, Article X, § 6-A(b) of the Virginia Constitution now provides as follows:

Notwithstanding the provisions of Section 6, the General Assembly by general law, and within the restrictions and conditions prescribed therein, may exempt from taxation the real property of the surviving spouse of any member of the armed forces of the United States who was killed in action as determined by the United States Department of Defense, who occupies the real property as his or her principal place of residence. The exemption under this subdivision shall cease if the surviving spouse remarries and shall not be claimed thereafter. This exemption applies regardless of whether the spouse was killed in action prior to the effective date of this subdivision, but the exemption shall not be applicable for any period of time prior to the effective date. This exemption applies to the surviving spouse's principal place of residence without any restriction on the spouse's moving to a different principal place of residence and without any requirement that the spouse reside in the Commonwealth at the time of death of the member of the armed forces.

As written, this provision makes clear that the exemption applies regardless of when the member of the armed forces was killed in action. "If a constitutional provision is plain and unambiguous, courts do not construe it, but apply it as written." Moreover, "if the intention is manifest from the language used and leads to no absurd conclusion, courts must give the provision the effect clearly intended."

On January 1, 2015, legislation implementing the tax exemption became effective. This legislation, which is codified at § 58.1-3219.9, details the exemption and provides in relevant part that:

Pursuant to subdivision (b) of Section 6-A of Article X of the Constitution of Virginia, and for tax years beginning on or after January 1, 2015, the General Assembly hereby exempts from taxation the real property described in subsection B of the surviving spouse (i) of any member of the armed forces of the United States who was killed in action as determined by the United States Department of Defense and (ii) who occupies the real property as his principal place of residence. If such member of the armed forces of the United States is killed in action after January 1, 2015, and the surviving spouse has a qualified principal residence on the date that such member of the armed forces is killed in action, then the exemption for the surviving spouse shall begin on the date that such member . . . is killed in action.

The language of this legislation is consistent with that of the constitutional provision authorizing the exemption. The significance of "January 1, 2015," involves only the tax years to which the exemption applies. Nothing in § 58.1-3219.9 serves to bar the exemption based on the date of death of the military member.

Conclusion

Accordingly, it is my opinion that the real property tax exemption provided for in Article X, § 6-A(b) of the Virginia Constitution and § 58.1-3219.9 of the Code of Virginia is applicable to the surviving spouses of members of the armed forces who are killed in action at any time prior to, on, or after January 1, 2015, provided all other requirements for the exemption have been met. The exemption applies for tax years beginning on or after January 1, 2015.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General