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Virginia Intestate Succession: Who Inherits Without a Will
Support GuideVirginia10 min read

Virginia Intestate Succession: Who Inherits Without a Will

Who inherits under Virginia intestate succession: the spouse takes all unless the decedent had outside descendants, then the spouse takes one-third under §64.2-200.

By Settled Editorial

When a Virginia resident dies without a will, the state's course of descents decides who inherits. This guide answers one question: who gets what. It maps the distribution rules under Va. Code §64.2-200 and the sections around it. The short version: the surviving spouse usually takes the entire estate, but if the decedent left descendants who are not also the spouse's, the spouse takes one-third and those descendants share two-thirds.

This is the distribution side of intestacy. For the process of opening the estate, qualifying as administrator, and the 30-day priority window, read the companion probate without a will in Virginia guide. That guide covers how to administer an intestate estate; this one covers who inherits from it. For the full settlement picture, start with the Virginia probate guide.

What Intestate Succession Covers

Dying without a will is called dying "intestate." When that happens, a will does not name the heirs, so Virginia statute does. The rules are the course of descents in Va. Code §64.2-200, and they run in a fixed order of family classes.

Intestate succession reaches only probate property, meaning assets that pass through the estate. Assets with a named beneficiary, a payable-on-death tag, survivorship rights, or trust ownership pass outside intestacy and do not follow these rules. So a life insurance policy with a named beneficiary, or a joint account with survivorship, goes to that person regardless of the course of descents. To see which assets skip probate entirely, read how to avoid probate in Virginia.

Two amounts also come off the top before the intestate shares are calculated, which the next section explains.

Allowances Come Off the Top First

Before the course of descents divides anything, a surviving spouse, or the minor children if there is no spouse, can claim three protected amounts under Title 64.2:

The family allowance and exempt property add to the inheritance. The homestead allowance offsets it and sets a floor. These allowances take priority over most claims and come ahead of the intestate shares, so the numbers below apply to what remains after the allowances and valid debts are handled. The Virginia family, exempt property, and homestead allowances guide works through each one and how they interact.

The Surviving Spouse Share

The spouse's share under Va. Code §64.2-200(A)(1) turns on a single fact: whether the decedent left descendants who are not also the surviving spouse's descendants.

Family situationSurviving spouseDecedent's descendants
No surviving descendantsEntire estateNone
All descendants are shared with the spouseEntire estateNone
One or more descendants are not the spouse's, such as a child from a prior relationshipOne-thirdTwo-thirds, shared among the decedent's children and their descendants

So the spouse takes everything when the couple's children are the only descendants, or when there are no descendants at all. The split to one-third and two-thirds kicks in only when the decedent had a child or grandchild outside the marriage to the surviving spouse. When that split applies, the two-thirds passes to all of the decedent's children and their descendants, not only to the children from outside the marriage. (Source: Va. Code §64.2-200.)

When There Is No Surviving Spouse

With no surviving spouse, or for the portion that does not pass to a spouse, the estate descends through a fixed order of classes under Va. Code §64.2-200(A). Each class must be empty before the next inherits.

  1. Children and their descendants. They take the whole intestate estate. A deceased child's share passes down that child's line by representation.
  2. Parents. With no descendants, the estate passes to the decedent's surviving parent or both parents.
  3. Siblings and their descendants. With no descendants and no surviving parent, the estate passes to the decedent's brothers and sisters and their descendants.
  4. More remote kin in two moieties. With none of the above, subdivision A 5 splits the estate into two halves. One-half passes to the kindred of one parent and one-half to the kindred of the other parent, running through grandparents, aunts and uncles, and more distant relatives on each side.

If a class has living members, the search stops there. The estate does not skip a living parent to reach a sibling, and it does not skip a living sibling to reach a cousin.

Representation: How a Deceased Heir's Share Passes Down

When an heir who would have inherited dies before the decedent but leaves descendants, those descendants step into that heir's place. Virginia calls this representation, and it works per stirpes, meaning by branch of the family.

Under Va. Code §64.2-202(A), the estate is divided into equal shares for the heirs in the closest degree of kinship who are living, plus one share for each deceased person of that same degree who left descendants surviving. Each living heir takes one share. Each deceased heir's one share passes per stirpes to that heir's descendants, who divide it among themselves.

A worked example makes this concrete. Say a decedent with no spouse had three children, and one child died first leaving two children of their own. The estate divides into three equal shares. The two living children each take one-third. The deceased child's one-third passes to that child's two children, who split it, so each grandchild takes one-sixth. The two grandchildren do not each take a full child's share; they divide the single share their parent would have received.

Half-Blood Relatives Take Half

When the heirs are collateral relatives, such as siblings, aunts, uncles, or cousins, the half blood matters. A half-blood relative shares only one parent with the connecting ancestor, such as a half-sibling who shares one parent with the decedent.

Under Va. Code §64.2-202(B), collaterals of the half blood inherit only half as much as collaterals of the whole blood in the same degree. So if a decedent with no spouse, no descendants, and no parents is survived by one whole-blood sibling and one half-blood sibling, the whole-blood sibling takes twice the share of the half-blood sibling. The estate divides into three parts: two to the whole-blood sibling and one to the half-blood sibling. This half-blood rule applies to collateral kin; it does not cut a surviving spouse's or a child's share. (Source: Va. Code §64.2-202.)

Afterborn Heirs and Advancements

Two more rules can change the final math.

Afterborn heirs. A relative conceived before the decedent's death but born after still inherits. Under Va. Code §64.2-204, such a child inherits as if born during the decedent's lifetime. So a child in utero at the decedent's death is counted as an heir.

Advancements. A lifetime gift can count against an heir's intestate share. Under Va. Code §64.2-206, when a descendant received property as an advancement from the decedent during life, that advancement is brought into hotchpot with the intestate estate. The estate plus the advancement is totaled, the heir's proper portion is calculated against that total, and the advancement already received counts toward the heir's share. The result evens out gifts the decedent made to one descendant during life.

What Happens If No Heir Exists

Virginia's course of descents reaches a wide circle of relatives, so an estate rarely has no heir. If no heir of any class can be found, the decedent's real estate is subject to escheat to the Commonwealth under Va. Code §64.2-200(B). Escheat is the last resort, not the default. Dying without a will does not send the estate to the Commonwealth in the ordinary case; it sends the estate down the family tree first.

Real Estate Vests in the Heirs at Death

Virginia treats solely owned real estate differently from most personal property. The land vests directly in the heirs at the moment of death. It does not wait in the estate for the Clerk to transfer it. The heirs identified by the course of descents own the property from the date of death, subject to the estate's right to reach it later if debts require.

Because title vests at death, the real estate after death in Virginia guide explains how a List of Heirs records the new ownership in the land records, and how deed language, survivorship wording, and creditor claims can change the next step. Check the deed, the tax record, and the mortgage before anyone distributes or lists an inherited house.

How the Pieces Fit Together

Use this sequence to read an intestate distribution:

  1. Separate probate property from assets that pass by beneficiary, survivorship, or trust. Only probate property follows the course of descents.
  2. Take the allowances off the top for the surviving spouse or minor children, and account for valid debts.
  3. Apply the spouse share under §64.2-200(A)(1): everything, unless an outside descendant triggers the one-third and two-thirds split.
  4. For any portion not passing to a spouse, run the class order: children and descendants, then parents, then siblings and their descendants, then the paternal and maternal moieties.
  5. Apply representation per stirpes for any deceased heir who left descendants, and the half-blood reduction for collateral kin.
  6. Adjust for afterborn heirs and advancements if they apply.

If the personal probate estate is small, the family may settle it with the Virginia small estate affidavit path rather than full administration, though the same shares determine who collects. Whoever serves still follows the executor and administrator duties that govern gathering assets, paying debts, and distributing the shares.

When to Get Help

Some intestate distributions are simple to map from the statute. Others need a licensed Virginia attorney, especially when:

  • a child from a prior relationship changes the spouse's share
  • a deceased heir's branch raises a representation question
  • half-blood and whole-blood relatives inherit together
  • an heir cannot be located or the family tree is unclear
  • an advancement or an afterborn heir affects the math
  • real estate must be sold to pay debts

This guide helps you organize the source-backed shares and the right questions. A lawyer can advise on rights, disputes, and signing decisions for a specific estate.

This guide is general information about Virginia estates. It is not legal advice. Confirm anything that affects your situation with the Clerk of the Circuit Court, the Commissioner of Accounts, or a licensed Virginia attorney.

Sources

Information current as of June 10, 2026

This content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Virginia can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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