Detailed Answer
When someone dies without a will in West Virginia, the state’s intestate succession laws determine who gets the estate. Under W. Va. Code § 44A-3-3, a surviving spouse generally inherits one half of the estate if there are no surviving children, or one third if there are children.
However, West Virginia law also gives a surviving spouse the option to elect a life estate—often called a dower interest—in one-third of the decedent’s real property instead of taking the intestate share. This right arises under W. Va. Code § 42-2-1. A life estate lets the surviving spouse live on and use that portion of real property for life. After the spouse dies, the property passes to the other heirs or as otherwise directed by law.
To make this election, the surviving spouse must:
- File a written notice of election in the office of the clerk of the county where the estate is being administered.
- Make the filing within nine months of the decedent’s date of death.
- Clearly state the election to accept a life estate in one-third of the real property in lieu of the intestate share.
If the surviving spouse fails to file the election timely, they lose the right to the life estate and take only the standard intestate share under § 44A-3-3. After filing, the personal representative will adjust distributions so the spouse receives the life estate and the remaining heirs share the balance of the estate’s real and personal property.
This election applies only to a surviving spouse. Other heirs—like children, siblings, or parents—cannot elect a life estate in lieu of their intestate share.
Helpful Hints
- Review W. Va. Code § 42-2-1 to confirm the exact description of the life estate right.
- Speak early with the personal representative or probate attorney to learn filing deadlines and format requirements.
- Keep copies of all filed documents and proof of service.
- Understand that once you choose the life estate, you cannot later withdraw the election.
- Consider how a life estate affects estate taxes and maintenance costs for the property.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney to discuss your specific situation.