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West Virginia Intestate Succession
Pillar GuideWest Virginia11 min read

West Virginia Intestate Succession

Who inherits under West Virginia intestate succession: the spouse takes the whole estate unless the decedent left descendants who are not the spouse's.

By Settled Editorial

When a West Virginia resident dies without a will, W. Va. Code §42-1-3 decides who inherits. A surviving spouse takes the whole estate when there are no descendants, or when every descendant is shared with the spouse. The share drops to one half when the decedent left a descendant who is not the spouse's, and to three fifths when the spouse has a descendant who is not the decedent's.

This guide answers one question: who gets what. It maps the distribution rules in West Virginia's descent article, W. Va. Code Chapter 42, Article 1. For how an intestate estate is actually opened and settled through the County Commission, read the West Virginia probate guide. A surviving spouse also holds a separate protection, the elective share, which the sections below point you to.

What Intestate Succession Covers

Dying without a will is called dying intestate. Under W. Va. Code §42-1-2, any part of an estate that a valid will does not dispose of passes by intestate succession to the decedent's heirs. A will can also expressly cut off an heir, and that heir's share then passes as if the heir had disclaimed it.

Intestate succession reaches only probate property, meaning the assets that pass through the estate. Property with a named beneficiary, a payable-on-death tag, survivorship rights, or trust ownership passes outside intestacy and does not follow these rules. A life insurance policy with a named beneficiary, or a joint account with survivorship, goes to that person no matter what the descent article says. To see which assets skip the estate, read how to avoid probate in West Virginia.

A validly executed will overrides all of this. The West Virginia will requirements guide covers how a will replaces these defaults with the decedent's own plan.

West Virginia Has No Probate Family or Homestead Allowance

This is where West Virginia parts ways with many states that adopted the Uniform Probate Code. West Virginia's descent article provides no probate family allowance, no homestead allowance, and no exempt-property allowance for a surviving spouse or minor children. Nothing is set aside off the top before the shares below are calculated.

A surviving spouse's separate statutory protection is the augmented-estate elective share under W. Va. Code §42-3-1. A spouse may elect a percentage of the augmented estate that rises with the length of the marriage, up to 50 percent for a marriage of 15 years or more. The surviving spouse rights guide works through that election and its deadline.

Do not confuse the elective share with the homestead and property-tax exemptions people find online. Those shield property from certain creditors or lower a tax bill. They are not probate allowances a surviving spouse claims from the estate.

The Surviving Spouse's Share

The spouse's share under W. Va. Code §42-1-3 turns on two facts: whether the decedent left descendants who are not also the spouse's, and whether the spouse has descendants who are not also the decedent's.

Family situationSurviving spouse takes
No surviving descendantsThe entire estate
Every descendant is shared with the spouse, and the spouse has no other descendantsThe entire estate
Every descendant is shared with the spouse, but the spouse has a descendant who is not the decedent'sThree fifths
The decedent left a descendant who is not the spouse'sOne half

Here is the pattern. The spouse takes everything when the couple's children are the only descendants, or when there are no descendants at all. Because the entire-estate rule applies whenever no descendant survives, West Virginia does not carve out a share for the decedent's parents when a spouse is alive. A surviving spouse with no children still takes the whole estate ahead of the decedent's parents.

The two fractions handle blended families. The one-half share applies when the decedent had a child from outside the marriage, so one or more of the decedent's descendants are not the spouse's. The three-fifths share applies when the decedent's children are all also the spouse's children, but the spouse has a child from another relationship. Whatever portion does not pass to the spouse goes to the decedent's other heirs, and a spouse can weigh the intestate share against the elective share instead. (Source: W. Va. Code §42-1-3.)

When There Is No Surviving Spouse

With no surviving spouse, or for any portion that does not pass to one, W. Va. Code §42-1-3a sends the estate down a fixed order of classes. Each class must be empty before the next inherits.

  1. Descendants. The decedent's children and their descendants take the estate by representation.
  2. Parents. With no descendant, the estate passes to the decedent's parents equally, or to the surviving parent.
  3. The parents' descendants. With no descendant and no parent, the estate passes to the decedent's brothers and sisters and their descendants by representation.
  4. Grandparents and their descendants. With none of the above, the estate splits in half. One half passes to the paternal grandparents, or the surviving paternal grandparent, or their descendants by representation. The other half passes the same way on the maternal side. If one side has no taker, the whole estate passes to the other side.

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

Representation: How a Deceased Heir's Branch Inherits

West Virginia divides a deceased heir's share by representation, using the modern method known as per capita at each generation under W. Va. Code §42-1-3d. Here is how it works.

Find the generation nearest the decedent that has at least one living member. Split the estate into one share for each living member of that generation and one share for each deceased member who left descendants. Each living member takes one share. The remaining shares are then combined and divided again the same way among the next generation.

A worked example makes it concrete. Say a decedent with no spouse had three children, and two of them died first, one leaving a single child and the other leaving three children. The estate divides into three shares at the children's generation. The one living child takes one third. The other two thirds are pooled and split equally among the four grandchildren, so each grandchild takes one sixth. This differs from strict per stirpes, where the lone grandchild would take a full one-third branch. Per capita at each generation instead gives every grandchild in the same generation an equal amount.

Half-Blood Relatives Inherit the Same Share

When the heirs are collateral relatives, such as half-siblings, the half blood does not cut anyone's share in West Virginia. Under W. Va. Code §42-1-3e, relatives of the half blood inherit the same share they would take if they were of the whole blood. A half-sibling who shares one parent with the decedent inherits the same as a full sibling in the same position. Cross-state guides get this wrong often, because several states reduce a half-blood collateral's share.

The 120-Hour Survival Rule and Afterborn Heirs

Two timing rules can change who counts as an heir.

An heir must outlive the decedent by 120 hours, which is five days. Under W. Va. Code §42-1-3b, a person who fails to survive the decedent by 120 hours is treated as having died first, and the heirs are worked out as if that person were not there. When the order of two deaths cannot be established, the statute treats the possible heir as not having survived.

A child conceived before the decedent's death but born after still inherits. Under W. Va. Code §42-1-3f, a child in gestation when the decedent died is treated as living, as long as the child lives at least 120 hours after birth.

Advancements

A lifetime gift can count against an heir's intestate share, but only under narrow conditions. Under W. Va. Code §42-1-3g, a gift the decedent made during life counts as an advancement only if the decedent said so in a writing made at the time of the gift, or the heir acknowledged in writing that the gift was an advancement or was to be counted when dividing the estate. Without that writing, the gift does not reduce the heir's share. An advancement is valued as of the date the heir took possession or the date of death, whichever comes first.

What Happens If No Heir Exists

West Virginia's descent article reaches a wide circle of relatives, so an estate rarely runs out of heirs. If it does, W. Va. Code §42-1-3c sends the estate to the state. Real property passes to the State Auditor, and its sale proceeds go to the general school fund. Personal property passes to the State Treasurer for public sale, with proceeds credited to the General Revenue Fund. This escheat is the last resort, not the ordinary result of dying without a will.

How the Pieces Fit Together

Read a West Virginia intestate distribution in this order:

  1. Separate probate property from assets that pass by beneficiary, survivorship, or trust. Only probate property follows the descent article.
  2. Apply the spouse's share under §42-1-3: the whole estate, three fifths, or one half, depending on whose descendants survive.
  3. For any portion that does not pass to a spouse, run the class order in §42-1-3a: descendants, then parents, then the parents' descendants, then the paternal and maternal halves.
  4. Divide a deceased heir's share by representation under §42-1-3d, and remember that half-blood relatives take a full share.
  5. Adjust for the 120-hour survival rule, an afterborn heir, or a written advancement.

Whoever settles the estate still follows the executor and administrator duties of gathering assets, paying valid debts, and distributing the shares through the County Commission. To see how these rules divide a specific estate, use the West Virginia inheritance calculator and model who inherits what when there is no will.

When to Get Help

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

  • a child from a prior relationship moves the spouse's share among the whole estate, three fifths, and one half
  • a deceased heir's branch raises a representation question
  • the estate reaches grandparents and splits between the maternal and paternal sides
  • an heir cannot be located, or the family tree is unclear
  • a written 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 questions to ask. A licensed West Virginia attorney can advise on rights, disputes, and signing decisions for a specific estate.

This is general information about West Virginia estates, not advice for your situation. Confirm anything that affects your estate with the Clerk of the County Commission, the Fiduciary Supervisor, or a licensed West Virginia attorney.

Sources:

It is not legal advice.

Information current as of July 20, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in West Virginia can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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