It’s Complicated: The Effect of Virginia Intestacy Statutes When There are Children from a Prior Marriage


It’s Complicated: The Effect of Virginia Intestacy Statutes When There are Children from a Prior Marriage

By Thomas D. Duling

Have you ever wondered what will happen to your property after your death? This property, which is generally known as your estate, is distributed pursuant to certain statutes that have been enacted by our legislature. A common myth is that your estate that is not disposed of by a Will is taken by government authorities. That is simply not true. There are a series of Virginia laws that dictate how property is to be distributed after your death without a Will.

For the most part, the law reflects common sense and would be satisfactory to most people. The statute – known as the law of “intestate” succession, meaning death without a Will – states that in the event you are survived by a spouse and do not have children from a prior marriage, the entire estate is distributed to the surviving spouse. The same statutes go on to say that if you are not survived by a spouse but are survived by children, the children or their descendants, meaning the living children of a deceased child, equally share in the remainder of your estate after the payment of your legitimate debts, expenses and taxes. The same statutes also state that if you are not survived by a spouse or children, that your estate is distributed to the closest biologically determined members of your family, meaning that if you die with a living parent or parents, they receive your property and if they are not living, the estate is distributed to your brothers and sisters or their descendants.

In many situations, the effect of the statute is consistent with the wishes of the decedent, or deceased person. But there is one situation in which the wisdom of the legislature tends not to reflect the wishes of most individuals.

The law states that in the event that you die with children from a prior marriage or relationship – that is, that you and your spouse are not the biological parents of your children – the estate is divided in a proportion of two thirds of your assets passing to your children, and one third of assets passing to the surviving spouse. That is an attempt by our law to recognize the probability that you would want your estate shared not only with your spouse but also with your children.

I will use your home as an example of how the statutes may not reflect your wishes. If you were to own your personal residence in your name alone (not jointly with your spouse) and you were to die without a Will, the effect of your death would be the immediate transfer of title to your home at your death in the proportions dictated by the statute. That is, your children would own a two-thirds interest in the home and your spouse would own a one-third interest in the home. Your spouse would then have to deal with the reality that other parties are owners of the property that, in most cases, the spouse is occupying. The spouse might be forced to lease the interest of the children after your death or possibly be forced to purchase the interest of the children. This transfer occurs at death and is not usually the result a decedent intends.

The children, of course, can make a gift of their interest to their parent, but they are under no legal obligation to do so, and if they do, they must consider the possibility of the payment of a gift tax on the property interest that they inherited.

All of these complications could have been avoided by the preparation of a properly drafted Will. A Will allows any resident to override the Virginia statutes relating to inheritance without a Will. The property rights of spouse and children can be amended in order to achieve an intended result, such as the transfer of title to the spouse or the transfer of the use of the property to a spouse while reserving the ultimate ownership of property in the children. By taking steps to prepare a properly crafted Will, the owner of property will have an opportunity to properly dispose of property owned at death without facing the complications of the intestacy laws, which are intended to fairly dispose of property where a person has not created a Will.

The information provided in this article is not intended as legal advice and does not create an attorney-client relationship.  If you have Will or estate planning questions, please contact Thomas Duling at Compton & Duling, L.C. at (703) 565-5130.