West Virginia Intestacy Laws

The following are excerpts from West Virginia’s intestacy laws. Please reference the full body of the Descent and Distribution chapter of the West Virginia Code at the West Virginia State Legislature for any changes to those laws that may not be reflected below.

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West Virginia Intestate Laws

42-1-1. General definitions.
(5) “Descendant” of an individual means all of his or her descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in this code.

(16) “Heirs” means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.

(16) “Heirs” means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.

(19) “Issue” of a person means descendant as defined in subdivision (5) of this section.

(26) “Parent” includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent.

(32) “Property” includes both real and personal property or any interest therein and means anything that may be the subject of ownership.

(38) “Survive” means that an individual has neither predeceased an event, including the death of another individual, nor is deemed to have predeceased an event. The term includes its derivatives, such as “survives”, “survived”, “survivor” and “surviving”.

42-1-3. Share of spouse.
The intestate share of a decedent’s surviving spouse is:
(a) The entire intestate estate if:
(1) No descendant of the decedent survives the decedent; or
(2) All of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(b) Three fifths of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(c) One half of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

42-1-3a. Share of heirs other than surviving spouse.
Any part of the intestate estate not passing to the decedent’s surviving spouse under section three of this article, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(a) To the decedent’s descendants by representation;
(b) If there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
(c) If there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
(d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner; but, if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.




42-1-3b. Requirement that heir survive decedent for one hundred twenty hours.
An individual who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of intestate succession, and the decedent’s heirs are determined accordingly. If the time of death of a decedent or of an individual who would otherwise be an heir, or the times of death of both, cannot be determined, and it is not established that the individual who would otherwise be an heir survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state under section three-c of this article.

42-1-3c. No taker.
If there is no taker under the provisions of this article, the intestate estate passes to the state. Any real property shall pass to the State Auditor. Any personal property shall pass to the State Treasurer for disposition by public sale in accordance with the provisions of section twelve, article eight, chapter thirty-six of this code. The proceeds of the sale of any such real property shall be deposited to the credit of the general school fund. The proceeds of the sale of any such personal property shall be deposited to the credit of the General Revenue Fund.

42-1-3d. Representation.
(a) In this section:
(1) “Deceased descendant,” “deceased parent,” or “deceased grandparent” means a descendant, parent, or grandparent who either predeceased the decedent or is deemed to have predeceased the decedent under section three-b of this article.
(2) “Surviving descendant” means a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under section three-b of this article.
(b) If, under section three-a of this article, a decedent’s intestate estate or a part thereof passes “by representation” to the decedent’s descendants, the estate or part thereof is divided into as many equal shares as there are: (i) Surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants; and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
(c) If, under section three-a of this article, a decedent’s intestate estate or a part thereof passes “by representation” to the descendants of the decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are: (i) Surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants; and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allotted a share and their surviving descendants had predeceased the decedent.

42-1-3e. Kindred of half blood.
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

42-1-3f. Afterborn heirs.
An individual in gestation at a particular time is treated as living at that time if the individual lives one hundred twenty hours or more after birth.

42-1-8. Posthumous children to take.
Any child in the womb of its mother at, and which may be born after, the death of the intestate, shall be capable of taking by inheritance in the same manner as if such child were in being at the time of such death.