Virginia Intestacy Laws
Virginia Intestacy Laws
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Virginia's Intestacy Laws

If you die without a valid will while residing in the Commonwealth of Virginia, you are said to have died "intestate."  In order to determine who will receive your property if you die intestate, the Commonwealth of Virginia has established a number of laws (known as "intestacy laws" or "laws of intestate succession.") The primary statutes comprising these intestacy laws, or laws of intestate succession, are set forth below. For a more complete list, see Virginia Intestacy Laws | Intestate Succession statutes.

 

 

§ 64.1-1.  Course of descents generally.

When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to such of his kindred, male and female, in the following course: 

First. To the surviving spouse of the intestate, unless the intestate is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case two-thirds of such estate shall pass to all the intestate's children and their descendants and the remaining one-third of such estate shall pass to the intestate's surviving spouse. 

Second. If there be no surviving spouse, then the whole shall go to all the intestate's children and their descendants. 

Third. If there be none such, then to his or her father and mother or the survivor. 

Fourth. If there be none such, then to his or her brothers and sisters, and their descendants. 

Fifth. If there be none such, then one moiety shall go to the paternal, the other to the maternal kindred, of the intestate, in the following course: 

Sixth. First to the grandfather and grandmother or the survivor. 

Seventh. If there be none, then to the uncles and aunts, and their descendants. 

Eighth. If there be none such, then to the great grandfathers or great grandfather, and great grandmothers or great grandmother. 

Ninth. If there be none, then to the brothers and sisters of the grandfathers and grandmothers, and their descendants. 

Tenth. And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors. 

Eleventh. If there be no paternal kindred the whole shall go to the maternal kindred; and if there be no maternal kindred, the whole shall go to the paternal kindred. If there be neither maternal nor paternal kindred, the whole shall go to the kindred of the husband or wife, in the like course as if such husband or wife had died entitled to the estate.
 

§ 64.1-2.  How collaterals of half blood inherit.

Collaterals of the half blood shall inherit only half so much as those of the whole blood.
 

§ 64.1-3.  When parties take per capita and when per stirpes.

Whenever those entitled to partition are all in the same degree of kindred to the intestate, they shall take per capita or by persons; and when, a part of them being dead and a part living, the issue of those dead have right to partition, such issue shall take per stirpes or by stocks, that is to say, the shares of their deceased parents.
 

§ 64.1-4.  When alienage of ancestor not to bar.

In making title by descent, it shall be no bar to a party that any ancestor, whether living or dead, through whom he derives his descent from the intestate, is or has been an alien.
 

§ 64.1-5.1.  Meaning of child and related terms.

If, for purposes of this title or for determining rights in and to property pursuant to any deed, will, trust or other instrument, a relationship of parent and child must be established to determine succession or a taking by, through or from a person:

1. An adopted person is the child of an adopting parent and not of the biological parents, except that adoption of a child by the spouse of a biological parent has no effect on the relationship between the child and either biological parent.

2. The parentage of a child resulting from assisted conception shall be determined as provided in Chapter 9 (§ 20-156 et seq.) of Title 20.

3. In cases not covered by subdivision 1 or 2 hereof, a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

a. The biological parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage was prohibited by law, deemed null or void or dissolved by a court; or

b. The paternity is established by clear and convincing evidence, including scientifically reliable genetic testing, as set forth in § 64.1-5.2; however, paternity establishment pursuant to this subdivision b shall be ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.

4. No claim of succession based upon the relationship between a child born out of wedlock and a parent of such child shall be recognized in the settlement of any decedent's estate unless an affidavit by such child or by someone acting for such child alleging such parenthood has been filed within one year of the date of the death of such parent in the clerk's office of the circuit court of the jurisdiction wherein the property affected by such claim is located and an action seeking adjudication of parenthood is filed in an appropriate circuit court within said time. However, such one-year period shall run notwithstanding the minority of such child. The limitation period of the preceding sentence shall not apply in those cases where the relationship between the child born out of wedlock and the parent in question is (i) established by a birth record prepared upon information given by or at the request of such parent; or (ii) by admission by such parent of parenthood before any court or in writing under oath; or (iii) by a previously concluded proceeding to determine parentage pursuant to the provisions of former § 20-61.1 or Chapter 3.1 (§ 20-49.1 et seq.) of Title 20.

5. Unless otherwise specifically provided therein, an order terminating residual parental rights under § 16.1-283 shall terminate the rights of the parent to take from or through the child in question but the order shall not otherwise affect the rights of the child, the child's kindred, or the parent's kindred to take from or through the parent or the rights of the parent's kindred to take from or through the child.
 

§ 64.1-5.2.  Evidence of paternity.

For the purposes of this title, evidence that a man is the father of a child born out of wedlock shall be clear and convincing and may include, but shall not be limited to, the following:

1. That he cohabited openly with the mother during all of the ten months immediately prior to the time the child was born;

2. That he gave consent to a physician or other person, not including the mother, charged with the responsibility of securing information for the preparation of a birth record that his name be used as the father of the child upon the birth records of the child;

3. That he allowed by a general course of conduct the common use of his surname by the child;

4. That he claimed the child as his child on any statement, tax return or other document filed and signed by him with any local, state or federal government or any agency thereof;

5. That he admitted before any court having jurisdiction to try and dispose of the same that he is the father of the child;

6. That he voluntarily admitted paternity in writing, under oath;

7. The results of scientifically reliable genetic tests, including DNA tests, weighted with all the evidence; or

8. Other medical, scientific or anthropological evidence relating to the alleged parentage of the child based on tests performed by experts.

If a proceeding to determine parentage has been initiated and concluded pursuant to former § 20-61.1 or Chapter 3.1 (§ 20-49.1 et seq.) of Title 20, and the court enters a judgment against a man for the support, maintenance and education of a child as if the child were born in lawful wedlock to the man, that judgment shall be sufficient evidence of paternity for the purposes of this section.
 

§ 64.1-6.1. Persons related to decedent through two lines.

A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship which would entitle him to the larger share.
 

§ 64.1-8.1.  Afterborn heirs.

Relatives of the decedent conceived before his death but born thereafter, and children resulting from assisted conception born after decedent's death who are determined to be relatives of the decedent as provided in Chapter 9 (§ 20-156 et seq.) of Title 20, shall inherit as if they had been born during the lifetime of the decedent.

§ 64.1-10.  Right of entry not affected by descent cast.

The right of entry on or action for land shall not be tolled or defeated by descent cast.
 

§ 64.1-11. Distribution of personal estate.

When any person shall die intestate as to his personal estate or any part thereof, the surplus (subject to the provisions of Article 5.1 (§ 64.1-151.1 et seq.) of Chapter 6 of this title), after payment of funeral expenses, charges of administration and debts, shall pass and be distributed to and among the same persons, and in the same proportions, to whom and in which real estate is directed to descend. However, if the intestate was married, the surviving spouse shall be entitled to one-third of such surplus, if the intestate left surviving children or their descendants, one or more of whom are not children or descendants of the surviving spouse. If no such children or their descendants survive, the surviving spouse shall be entitled to the whole of such surplus.
 

§ 64.1-12.  Right of Commonwealth, if no other distributee.

To the Commonwealth shall accrue all the personal estate of every decedent, of which there is no other distributee.
 

§ 64.1-13.  When and how elective share may be claimed.

A. Whether or not (i) any provision for a husband or wife is made in the spouse's will, or (ii) the spouse dies intestate, the surviving husband or wife of a decedent who dies domiciled in this Commonwealth may, within six months from the later of (i) the time of the admission of the will to probate or (ii) the qualification of an administrator on the intestate estate, claim an elective share in the spouse's augmented estate. The claim to an elective share shall be made either in person before the court having jurisdiction over administration of the decedent's estate or by writing recorded in such court, or the clerk's office thereof, upon such acknowledgment or proof as would authorize a writing to be admitted to record under Chapter 6 (§ 55-106 et seq.) of Title 55.

B. The right, if any, of the surviving husband or wife of a decedent who dies domiciled outside this Commonwealth to take an elective share amount based upon the value of property in this Commonwealth is governed by the law of the decedent's domicile at death.

 

 

[Reference - Virginia Intestacy Laws | Intestate Succession]

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