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By Anna Melissa Price of Jenkins Fenstermaker, PLLC on 12/30/2019

Understanding West Virginia Intestate Laws

When a West Virginian dies, the deceased's property is transferred to his or her heirs through a legal process referred to as probate. After the debts of the estate are paid, the property is devised to heirs in one of two ways: (1) if the person had a Last Will and Testament (a "will"), this means the person died "testate," and the property is transferred according to the will; or (2) if the person died without a will, the decedent is said to have died "intestate." West Virginia intestate laws then control the allocation of the decedent's property. This blog will discuss what happens to property when a person dies without a will.

Image of a person with pen in hand writing on a blank piece of paper, representing how documenting your wishes before you die and hiring an attorney who knows West Virginia Intestate Laws will ensure your wishes are carried out.

West Virginia Intestate Laws Control Who Inherits and How Much They Inherit.

In West Virginia (WV), the first consideration is whether the person who died left a surviving spouse or surviving children behind.

Who Inherits Property in WV When the Person Dies Leaving a Spouse and/or Children?

West Virginia intestate laws look first to whether the decedent had a spouse or children. If so, the following rules apply:

  • If the person is survived by a spouse but no children, the spouse inherits all of the entire probate estate (the property that is not jointly owned with someone else).
  • If the person is survived by children but no spouse, the children inherit the entire probate estate.
  • If the person is survived by a spouse and descendants and neither the spouse nor the deceased have other descendants, the spouse inherits the entire probate estate.
  • If the person is survived by a spouse, descendants of that spouse, and the spouse has descendants from another relationship, the spouse will inherit 3/5 of the estate and the decedent's descendants will inherit 2/5 of the estate.
  • If the person is survived by a spouse and descendants from someone other than the spouse, the spouse will inherit one-half of the estate and the descendants will inherit the other half.

WV Intestate Laws When There Is No Surviving Spouse or Children

If a person dies leaving no surviving spouse or descendants, West Virginia intestate laws look to other family members. First, if a decedent has a parent or parents living, the parents will receive equal shares of the probate estate. If only one parent is living, that parent will inherit the entire estate. If no parents are living, the person's siblings or their descendants will inherit the estate. And finally, if no relatives are found, the estate property will become the property of the state of West Virginia.

West Virginia Intestate Laws Provide Clarification for Special Situations.

Special Laws Relating to Children

West Virginia intestate laws have special rules that help clarify who is, and who is not, considered a child for the purpose of inheritance. First, children who have been legally adopted are treated the same as biological children. In addition, as in many other states, children conceived, but not yet born before the decedent's death, are entitled to a share of the estate.

On the other hand, stepchildren and foster children who have not been legally adopted are not included in West Virginia intestate laws. Similarly, biological children who have been legally adopted by someone else (other than the decedent's spouse) are not entitled to a share.

Children born outside marriage will receive a share only in one of three circumstances:

  • The father participated in a marriage ceremony that was later voided;
  • The father acknowledged paternity; or
  • Paternity is established before or after the father's death according to West Virginia law.

Other Special Rules

Still Confused about West Virginia Intestate Laws?

The loss of a loved one is painful, but navigating the probate process and West Virginia intestate laws need not be your burden alone. If you are considering your estate plan or have recently lost someone who died intestate, and you need more information, contact me, Anna M. Price, at Jenkins Fenstermaker, PLLC. Call 866.617.4736 or complete our firm's Contact form. I would be happy to help you manage the issues presented by West Virginia intestate laws.