Legal Question in Wills and Trusts in Virginia

Husband without a will

My husband and I have two adult sons. My husband owns several homes in his name only. If my husband dies without a will, how will the property be distributed? Will it all pass to me or will it be split between our sons and me?

Asked on 7/07/06, 8:20 pm

3 Answers from Attorneys

Michael E. Hendrickson Attorney & Counsellor at Law
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Re: Husband without a will

You would have a right to an elective 1/3 share of the estate as your husband's surviving spouse.

See Sec. 64.1-11 of the Va. Code.

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Answered on 7/07/06, 8:51 pm
James Wilson James H. Wilson, Jr., Attorney & Counsellor at Law
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Re: Husband without a will

You should consult with a Virginia attorney to discuss the application of the law to the facts of your particular situation. The following is general legal information on the law of intestate succession in Virginia. When a person dies without a will, Section 64.1-1 describes to whom inheritable property passes:

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.

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Answered on 7/08/06, 7:51 am
Michael E. Hendrickson Attorney & Counsellor at Law
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Re: Husband without a will

My previous answer is in error and must be corrected, i.e., as Mr. Wilson has correctly referenced in the Virginia statute (Sec. 64.1-1) describing the various courses of descents of inheritance recognized by the Commonwealth where the decedent dies without a will(intestate), as the surviving spouse of your husband who dies intestate, you would be entitled to all of his estate and not merely a 1/3 share as long as the surviving children of the marriage are the issue of you and your deceased husband and not soley his from a previous marriage. If the latter situation applied, you then as the surviving spouse of the intestate would be entitled only to the 1/3 share which I incorrectly referenced in my prior post.

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Answered on 7/09/06, 2:42 pm

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