Disclaimer: This article provides general information only and does not constitute legal advice.
Detailed Answer
Under West Virginia law, a surviving spouse may claim a family allowance from the deceased’s estate to cover basic living expenses. West Virginia Code § 44-1-6 authorizes probate courts to grant a reasonable family allowance of up to $1,200 per month for six months (W.Va. Code § 44-1-6). To qualify, the court must confirm the claimant is a valid surviving spouse.
Key to that confirmation is proof of marriage. A complete, properly filed marriage certificate—usually recorded by the county clerk under W.Va. Code § 48-2-101 et seq.—serves as primary evidence. If the certificate is missing or incomplete, the probate clerk or judge may:
- Require alternative documentation, such as a certified duplicate from the West Virginia Vital Registration office (W.Va. Code § 16-5-7), affidavits from the officiant or witnesses, or a baptismal or joint tax return showing married status.
- Allow sworn testimony from parties who attended or officiated at the ceremony.
- Review contemporaneous documents—like insurance policies, joint leases, or bank accounts—listing the decedent and claimant as spouses.
If you cannot establish marriage through these methods, the court may treat you as a non-spouse for purposes of the family allowance. That often results in denial or reduction of the monthly allotment. To minimize delays, gather and file all possible proofs of marriage as early as you file your allowance petition.
Helpful Hints
- Request a certified duplicate marriage certificate immediately from the West Virginia Department of Health and Human Resources via Vital Registration.
- Gather secondary evidence: affidavits from clergy, family or friends who attended the wedding.
- Collect joint financial documents—tax returns, deeds, leases—to support proof of marriage.
- File your family allowance petition within six months of the decedent’s death to preserve your rights under W.Va. Code § 44-1-6.
- Consult a probate clerk in the county where the decedent’s estate is opened for specific submission requirements.