Intestacy means dying without a will. Each state has its own laws governing inheritance rights under these circumstances. In Virginia, the basic rules as to who will inherit and in what order are found in § 64.2-200 and following of the Virginia Code.
A question recently arose with one of my clients about what happens when a spouse dies without a will who has adult children from a prior marriage. The basic rule is that a spouse will inherit everything if the decedent (person who died) had no children or if the only children are joint children of the decedent and the surviving spouse, whether by blood or adoption. If the decedent did have children who are not children of the surviving spouse, (such as from a prior marriage) then the surviving spouse is entitled to one third of the probate estate, (the real and personal property not passing by other means such as named beneficiaries, transfer on death deed, right of survivorship, etc.) and the children of the decedent (or their descendants) are entitled to two thirds.
This one-third share is not the same as the “elective spousal share” discussed in § 64.2-302 and following of the Virginia Code. The elective spousal share is an alternative option that a spouse may exercise whether their spouse died with or without a will. It must be exercised within six months of the later of admission of the will to probate or qualification of an administrator of an intestate estate.
The elective spousal share is far more complicated than the default one-third or everything spousal share discussed in § 64.2-200. To begin with, the elective spousal share is one-third of the “augmented estate” in cases where the spouse had children, whether joint children or not. If the spouse had no children, then the elective share is one-half of the “augmented estate.”
The augmented estate potentially encompasses much more than the probate estate because it also includes assets that may have had named beneficiaries, survivorship rights, etc. The flip side of this, however, is that transfers made during life are credited to the elective share. The entire formula is quite complicated and is found in § 64.2-305 of the Virginia Code.
The only time a surviving spouse would want to exercise this elective share is where they were essentially disinherited by a will or where all or most of the decedent’s assets had named beneficiaries and survivors other than the spouse.
The reason for the elective spousal share is to protect the surviving spouse as much as possible from neglect by the predeceasing spouse. Of course if this neglect were unintentional, it could be much more easily solved by preparing an estate plan that includes the spouse.
There are many circumstances, however, including probably the majority of cases of intestacy, where it would not make sense for the surviving spouse to make this election. If there are only joint children, for example, the elective share consists of one-half of the augmented estate vs. the default share of all of the probate estate. The circumstances do matter. Are there substantial assets passing outside of probate? Who are the beneficiaries of these assets? Etc.
The bottom line is that it is always a good idea to consult an attorney to formulate an estate plan that protects your loved ones in the most effective way, whether using a will or trust or other vehicles.