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Surviving Spouse Rights West Virginia

A surviving spouse in West Virginia has important rights and protections under West Virginia law, including:

  • Intestate Share
  • Elective Share

It is critical for a West Virginia widow to educate themselves about what they are entitled to from their deceased spouse’s assets.

If Spouse Dies Without A Will (Intestacy) in West Virginia

When a spouse dies without a will directing how assets will be distributed, the intestacy laws of West Virginia will govern.  For a surviving spouse, the portion of the estate to which the surviving spouse is entitled depends on the number of surviving descendants of decedent, and if the descendants are also the descendants of the surviving spouse.  The intestate share of the surviving spouse is governed by West Virginia Code 42-1-3.

Share of Surviving Spouse – No Surviving Descendants

If the surviving spouse is the only survivor, then the surviving spouse is entitled to decedent’s entire estate.

Share of Surviving Spouse – All Descendants Are Also Descendants of Surviving Spouse

If all of the decedent’s descendants are also descendants of the surviving spouse (meaning decedent did not have children with anyone but the surviving spouse), then the surviving spouse in West Virginia is entitled to the entire estate.

Share of Surviving Spouse – Surviving Spouse Has One Or More Separate Descendants

If all of the decedent’s descendants are also descendants of the surviving spouse, but the surviving spouse has one or more separate descendants who survive the decedent, then the surviving spouse in West Virginia is entitled to 3/5 of the estate.

Share of Surviving Spouse – Decedent Has One Or More Descendants That Are Not Descendants Of The Surviving Spouse

If the decedent has one or more descendants are not descendants of the surviving spouse, then the surviving spouse is entitled to 1/2 of the decedent’s estate.

Elective Share Rights of Surviving Spouse in West Virginia

The surviving spouse of a West Virginia decedent can elect against the Decedent’s will or the intestate share and take an elective share in Decedent’s augmented estate.

Amount Of The Surviving Spouse’s Elective Share

The surviving spouse’s elective share amount is determined on a vesting schedule based on the length of the marriage.  The right to the elective share, and the vesting schedule, is set forth in West Virginia Code section 42-3-1.

Under West Virginia law, the longer the marriage, the larger percentage of the augmented estate can be claimed by the surviving spouse.  As shown below, the percentage can be as high as 50% of the augmented estate:

Less than 1 year Supplemental Amount Only1 year but less than 2 years 3% of the augmented estate.

2 years but less than 3 years 6% of the augmented estate.

3 years but less than 4 years 9% of the augmented estate.

4 years but less than 5 years 12% of the augmented estate.

5 years but less than 6 years 15% of the augmented estate.

6 years but less than 7 years 18% of the augmented estate.

7 years but less than 8 years 21% of the augmented estate.

8 years but less than 9 years 24% of the augmented estate.

9 years but less than 10 years 27% of the augmented estate.

10 years but less than 11 years 30% of the augmented estate.

11 years but less than 12 years 34% of the augmented estate.

12 years but less than 13 years 38% of the augmented estate.

13 years but less than 14 years 42% of the augmented estate.

14 years but less than 15 years 46% of the augmented estate.

15 years or more 50% of the augmented estate.

Alternatively, a surviving spouse has a right of election to a supplemental elective share amount equal to $25,000 less (a) amounts passing to the surviving spouse by non-probate transfer, (b) the surviving spouse’s separate property,(c) amounts passing to the surviving spouse by testate/intestate succession (d) amounts that would have passed to the surviving spouse but were disclaimed, if the sum of the foregoing ((a) through (b)) is less than $25,000.

Property Subject To The Elective Share

A Decedent’s augmented estate for purposes of the elective share determination consists of more assets than the decedent’s probate estate.  Decedent’s augmented estate includes the following:

  1. Decedent’s probate estate, reduced by funeral and administration expenses, homestead exemption, property exemption, and enforceable
  2. Decedent’s “re-claimable estate” (or non-probate transfers to others);
  3. Decedent’s non-probate transfers to spouse other than homestead exemption and exempt
    property; and
  4. Spouse’s separate property.

Assets such as life insurance, pensions, profit sharing, and retirement plans payable to persons other than the surviving spouse are not included in the Decedent’s augmented estate for purposes of the elective share.

Satisfaction of Elective Share

After the amount of the elective share is determined, the amount is satisfied based on a defined schedule of assets.  The first sources of satisfaction of the elective share amount are from the surviving spouse and include the amounts passing to the surviving spouse by testate or intestate succession, decedent’s non-probate transfers to the surviving spouse, disclaimed amounts, and the spouse’s separate property up to the applicable percentage.  If the elective share is not satisfied from these assets, then amounts included in the decedent’s probate estate and “reclaimable estate” are looked to to satisfy the balance.

When Does a Surviving Spouse in West Virginia Have To File For the Elective Share?

It is important that a surviving spouse knows the deadlines that apply to elect to take an elective share.  A surviving spouse must elect within nine months after the date of decedent’s death, or within six months after the probate of Decedent’s will.  If a surviving spouse elects after nine months from decedent’s death, then decedent’s “reclaimable estate” is excluded from the augmented estate.

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