Which Assets Pass by Intestate Succession

Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.

Many valuable assets don’t go through your will, and aren’t affected by intestate succession laws. Here are some examples:  

• property you’ve transferred to a living trust
• life insurance proceeds
• funds in an IRA, 401(k), or other retirement account
• securities held in a transfer-on-death account
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Virginia.

Who Gets What in Virginia?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:

The Spouse’s Share in Virginia

In Virginia, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants -- children, grandchildren, or great-grandchildren. If you don’t, or if all of your descendants are also descendants of your spouse, then your spouse inherits all of your intestate property.

If, however, you die with at least one descendant who is not the descendant of your surviving spouse, then your spouse inherits only 1/3 of your intestate property.  

Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $300,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright -- it’s not intestate property -- plus $100,000 worth of Barrett’s property. Barrett’s daughter inherits the remaining $200,000 share of Barrett’s property.

Children’s Shares in Virginia

If you die without a will in Virginia, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)

For children to inherit from you under the laws of intestacy, the state of Virginia must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.

• Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. (Virginia Code § 64.2-102.)
  • Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
  • Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won’t affect their intestate inheritance. (Virginia Code § 64.2-102.)
  • Posthumous children. Children conceived by you but not born before your death will receive a share of your estate. (Virginia Code § 64.2-203.)
  • Children born outside of marriage. If you were not married to your children’s mother when she gave birth to them, they may receive a share of your estate if (1) you had participated in a marriage ceremony that later turned out to be void, (2) your paternity is established “by clear and convincing evidence” under Virginia law. In some circumstances, a child born out of wedlock has only one year to file a claim for a portion of your property. (Virginia Code § § 64.2-102 and 64.2-103.)
    • Grandchildren. Your grandchildren will receive a share only if their parent (your child) has died before you do.

This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the laws yourself, you’ll find a link to the Virginia Code at the end of this article.

Will the State Get Your Property?

If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the children, parents, or siblings of a spouse who dies before you do. (See Virginia Code   § 64.2-200.)

Other Virginia Intestate Succession Rules

Here are a few other things to know about Virginia intestacy laws.

• Survivorship period. To inherit under Virginia’s intestate succession statutes, a person must outlive you by 120 hours. So if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. (Virginia Code § 64.2-2201.)
• Half-relatives. “Half” relatives inherit only half as much as they would if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the right to one-half of the amount of your property as she would if you had both parents in common. (Virginia Code § 64.2-202.)
• Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive. (Virginia Code § 64.2-204.)
• Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States. (Virginia Code § 64.2-203.)

Learn More

To learn more about intestate succession, read How an Estate Is Settled When There is No Will.

You can find Virginia’s intestate succession laws here: Virginia Code § § 64.2-200 to 64.2-206.

For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.

Need a lawyer? Search for an experienced estate planning attorney with Nolo’s Lawyer Directory.

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