Detailed Answer
Short answer: When a spouse dies without a will (intestate) in West Virginia, the surviving spouse has specific legal rights to inherit the decedent’s property, to participate in the probate process, and to request financial protections (like a family allowance and exempt property). The exact share the surviving spouse receives depends on who the decedent’s other heirs are (children, parents, siblings, etc.). If family members are excluding you from decisions, you can petition the probate court to protect your rights and to be appointed administrator.
How West Virginia law decides who gets what
West Virginia uses intestate succession rules to determine inheritance when there is no will. These rules are found in West Virginia’s Descent and Distribution statutes (Title 42). The statutes set the order of who inherits and describe how the estate divides among surviving relatives. For the exact statutory language, see West Virginia Code, Title 42 (Descent and Distribution):
https://code.wvlegislature.gov/42/.
In plain terms:
- If the decedent left no surviving spouse, children, or parents, more distant relatives inherit under the statute.
- If the decedent left a surviving spouse and no descendants (children/grandchildren) or parents, the spouse generally inherits the entire estate.
- If the decedent left a surviving spouse and descendants who are also descendants of the surviving spouse (for example, children born to both spouses), the surviving spouse often inherits the entire estate under many state intestacy rules.
- If the decedent left a surviving spouse and descendants who are not descendants of the surviving spouse (for example, the decedent’s children from a prior relationship), the surviving spouse typically receives a significant portion of the estate and the decedent’s children receive the remainder. The split depends on the precise family relationships and is determined by the statutes.
- If the decedent left surviving parents but no descendants, the spouse usually shares with the parents under specified statutory rules.
Probate process and your practical rights
When someone dies, their estate (assets, debts, property that is not owned jointly or otherwise transferred outside probate) is usually administered through the county probate court. As a surviving spouse you have several important procedural rights:
- Right to petition the probate court to open administration of the estate and to be appointed the estate’s personal representative (also called an administrator or executor if letters are issued). If you want to be the administrator, file in the county where the decedent lived.
- Right to receive notice of probate filings and court hearings. The court must notify interested persons about petitions and inventories.
- Right to request a family allowance, exempt property, or other statutory protections the law provides to support the surviving spouse while the estate is administered. These protections exist to supply reasonable support during probate.
- Right to an accounting. If someone else is acting as administrator, you can ask the court for accountings of estate activity and can object if you believe actions are improper.
- Right to challenge actions that improperly deprive you of property — for example, blocking transfers or concealment of assets by other family members. You can ask the court for injunctive relief and to remove a personal representative for misconduct.
What to do if the decedent’s family is cutting you out
If the decedent’s family is excluding you from decisions, taking control of assets, or refusing to provide information, consider these steps:
- File a petition in the local probate court to open estate administration and to request appointment as administrator (or to request that the court appoint someone if there is a conflict). The court has authority to decide who legally controls estate matters.
- Ask the court for immediate protection: emergency orders or temporary injunctions can stop transfers or use of estate property while the dispute is resolved.
- Request a formal inventory and accounting. The administrator must identify estate assets; if someone refuses, file a motion to compel compliance.
- Claim statutory allowances and exemptions for surviving spouses (these reduce the estate’s value available for distribution while you receive necessary support).
- If family members are taking property that you believe is marital property or property that should pass to you, file motions to recover it. Documentation (titles, deeds, account statements) helps prove ownership.
Documents and evidence you should gather
- Certified copy of the death certificate
- Marriage certificate
- Any known deeds, vehicle titles, bank statements, retirement account info, life insurance policies, and bills
- Communications from family members (emails, messages) describing their actions regarding the decedent’s property
- Any written instruments that might be a will or trust
Where the law covers these rights
The intestacy and inheritance rules are contained in West Virginia’s Descent and Distribution statutes (Title 42). Probate practice — how to open an estate, petition for appointment, and request allowances — is handled by the county probate (or magistrate/probate) court and relevant probate procedure rules. For practical probate information, see the West Virginia judiciary’s probate resources:
https://www.courtswv.gov/lower-courts/probate/index.html.
When to get an attorney
Get a probate or estate attorney if the family is excluding you, if there is a fight over who should administer the estate, or if assets are being dissipated or concealed. An attorney can file petitions, request emergency relief, and represent you at hearings. If cost is a concern, many probate attorneys offer initial consultations and fixed-fee services for simple filings.
Disclaimer
This article explains general West Virginia probate and intestacy concepts and is not legal advice. It does not create an attorney‑client relationship. For legal advice about your specific situation, consult a licensed West Virginia attorney who can evaluate your facts and represent your interests.
Helpful Hints
- Act quickly: petition the probate court to protect estate assets and to secure your rights as a surviving spouse.
- Collect the death certificate and proof of marriage first — probate clerks and banks will require them.
- Do not transfer or destroy estate property yourself — let the court and appointed administrator handle transfers to avoid later claims against you.
- Ask the court for a family allowance and exempt property if you need short-term support while probate proceeds.
- If someone claims property was given to them by the decedent, demand documentation (a deed, signed transfer, or clear account beneficiary designation).
- Keep copies of every letter, email, and financial statement you collect; you may need these for court filings.
- Use the county probate clerk as a resource for forms and filing procedures; they cannot give legal advice but can explain steps and required documents.
- If you can, consult a probate attorney early to learn the strength of your claim and the best way to protect your rights.