A lot of laws work together to make sure property passes to an individual's rightful heirs and beneficiaries when he dies. Inheritance laws protect some people from being cut out of wills, and they make sure family members are provided for when there is no will. Virginia’s laws cover all these bases.
The Probate Estate
Inheritance laws deal with an individual’s probate estate -- property that can’t pass to someone else unless the court gets involved to transfer ownership. Some forms of estate planning don’t require the court’s assistance. Assets with beneficiary designations, living trusts, payable-on-death or transfer-on-death accounts and certain jointly titled real estate all pass directly to a survivor by operation of law; it happens without a court order. All other property requires probate.
Disinheriting Family Members
You can disinherit almost anyone in Virginia, with two exceptions. You can’t cut your spouse out of your will, at least not entirely, and you can’t disinherit your minor children. You can legally disinherit your adult children in every state but Louisiana.
Spouses are protected from disinheritance by the elective share law. If you bequeath your spouse nothing or next to nothing, she can challenge your will_. Virginia law gives her six months to notify the court that she won’t accept the terms of your will and she wants to claim her elective share instead. If you have children, this entitles her to one-third of your augmented estate_ -- probate property jointly owned by both of you. If you don’t have children, she gets half.
Your minor children are similarly protected. If they’re not mentioned in your will and you’re not married to their other parent at the time of your death, their other parent or guardian can petition the court to make sure your children receive financial support from your estate, just as they would be entitled to your financial support during your lifetime.
Virginia guarantees that your surviving spouse and all your children -- both minors and adults -- get a share of your estate if you should die without a will. Rules for intestate succession provide for your spouse to receive your entire estate if you have no children. If you have children but no spouse, your children receive your whole estate. If you have both a spouse and children, the equation gets a bit trickier. If your surviving spouse is also the parent of all your children, she gets your entire estate, but if you have a child from another relationship, your spouse’s share drops to one-third. All your child share in the balance.
Your parents can only inherit from you if you leave no spouse or children, and your siblings can only inherit if you have no living parent, no spouse and no children. If you have no living relatives at all, the state will take your property, but this happens only rarely. The court will conduct a diligent search for kin, no matter how distantly related, before your estate will escheat -- or transfer -- to the state.
Read More: The Effect of Abandonment of Heirs on Intestate Succession
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.