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Virginia Intestacy Rules

No matter how old you are, if you have assets worth protecting, it is a good idea to look into planning your estate. In the unlikely event that you should unexpectedly pass on, it is wise to have plans in place for who your assets will go to.

If you do not make plans for your estate and you unexpectedly pass, your assets will be subject to intestate succession laws.

Here’s what you should know about Virginia intestate succession laws:

Assets That Pass by Intestate Succession

The only assets that are impacted by intestate succession laws are those that would have passed through your will if you had one. That typically only includes the assets that you own alone and are in your own name.

Several valuable assets do not pass through the will and are not impacted by intestate succession laws. The following are some examples:

  • Property transferred into a living trust
  • Life insurance proceeds with beneficiary designations
  • Funds in an IRA, 401(k), or another retirement account with beneficiary designations
  • Securities held in a transfer-on-death account
  • Payable-on-death bank accounts
  • The property you own with another person in joint tenancy or tenancy by the entirety

The aforementioned assets will go to the surviving co-owner or the named beneficiary, regardless of whether you have a will.

Where the Assets Will Go

According to Virginia intestate succession laws, the transfer of your assets will depend on several factors, including whether you have living children, parents, or other close relatives when you pass on.

Here is a concise breakdown of what you can expect:

Your Spouse’s Inheritance

If you are married and you pass away without a will, your spouse’s inheritance will depend on whether you have living descendants, such as children, grandchildren, or great-grandchildren. If you have no descendants, or if all of your descendants are also descendants of your spouse, then all of your intestate property will go to your spouse.

However, if you have at least one descendant who is not also a descendant of your surviving spouse, then your spouse will only be able to inherit ⅓ of your intestate assets.

Your Children’s Inheritance

If you do not have a will when you pass, your children will inherit an “intestate share” of your assets. Each of your children’s shares will depend on how many children you have, your marital status, and whether your spouse is also a parent of your child.

In order for your children to inherit assets under the laws of intestacy, the state of Virginia must also legally regard them as your children. This is pretty straightforward for many families, but it may not always be clear for others. Here’s what you should consider:

Adopted Children

Your legally adopted children will receive an intestate share in the same ways your biological children do. (Virginia Code § 64.2-102)

Foster Children and Stepchildren

Foster children and stepchildren who were never legally adopted will not receive a share of the estate. Although if you do not have any other relatives, your stepchildren may be eligible to receive a portion of the inheritance.

Children Placed for Adoption

If you placed children up for adoption and they were legally adopted by another family, those children will not be able to receive a share of the estate. However, if your spouse adopted your biological children, their intestate inheritance will not be impacted. (Virginia Code § 64.2-102)

Post-Mortem Children

If you conceive any children and they are not born before you pass, they will be eligible for a share of the estate. (Virginia Code § 64.2-204)

Children Born Outside of Marriage

If you were unmarried to the mother of your children when they were born, they will only be eligible for an inheritance if Virginia law establishes your paternity “by clear and convincing evidence.”

Certain circumstances may provide that a child who is born out of wedlock may only have one year from the date you pass to file a claim for a portion of the estate. (Virginia Code § § 64.2-102 and 64.2-103)


Your grandchildren will only be eligible for a share of the estate if their parent (your son or daughter) is not alive to receive their share. (Virginia Code § 64.2-202)

Escheated Property

Your property will only escheat into the state’s coffers if you die without a will and do not have any family. This does not happen often because the laws are written to make sure your property goes to anyone who is even remotely related to you.

If you have any of the following living relatives, your assets will not go to the state:

  • Spouse
  • Children
  • Siblings
  • Parents
  • Grandparents
  • Aunts or uncles
  • Great aunts or uncles
  • Nieces or nephews
  • Great grandparents
  • Brothers and sisters of grandparents and their descendants
  • Cousins of any degree
  • The children, parents, or siblings of your spouse who passes before you do

Other Virginia Intestate Succession Laws

A few other rules apply to Virginia intestate succession, including:

  • Survivorship Period
    • A person must outlive you by 120 hours in order for them to inherit your assets.
    • For instance, if you and your sister are involved in a car wreck and she passes away a day after you do, then her estate will not receive any of your property. (Virginia Code § 64.2-2201)
  • Half-Relatives
    • “Half” relatives will be able to inherit half as much of the estate as they would if they were “whole.”
    • For example, if you have a brother who shares one parent with you, but not the other, then he will only be able to receive one-half of the amount of your property as he would if you had both of the same parents. (Virginia Code § 64.2-202)
  • Posthumous Relatives
    • Relatives who are conceived before (but are born after) you pass will inherit as if they were born when you were alive. (Virginia Code § 64.2-204)
  • Immigration Status
    • All of your eligible relatives qualify for intestate succession, regardless of whether they are United States citizens or in the country legally. (Virginia Code § 64.2-203)

If you have a valid reason for challenging your loved one’s will, our lawyers at Obenshain Law Groupmay be able to help you seek the justice you deserve. Give us a call at (540) 318-7360 or fill out an online contact form.


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