What the rule says
Virginia's intestacy statute, Va. Code § 64.2-200, distributes the estate of a Virginia decedent who dies without a will. The formula varies based on family structure:
- Spouse and all descendants are mutual: The surviving spouse takes the entire estate. - Spouse and at least one descendant from a prior relationship: The surviving spouse takes one-third of the estate. The descendants together take two-thirds, divided among them by representation. - Spouse but no descendants: The surviving spouse takes the entire estate. - Descendants but no spouse: The descendants take the entire estate by representation. - No spouse and no descendants: The estate passes to parents, then siblings, then more remote relatives, in the order specified.
Virginia's framework is similar to Florida's in providing the entire estate to the surviving spouse when descendants are mutual. The one-third / two-thirds split when descendants are from prior relationships is more spouse-favorable than some states (Illinois, for example, splits one-half / one-half regardless).
What this means in practice
The formula produces specific outcomes:
- A Virginia resident dies without a will, leaving a surviving spouse and three mutual children. The estate is worth $400,000. The spouse takes $400,000. - A Virginia resident dies without a will, leaving a surviving spouse and one child from a prior relationship. The estate is worth $300,000. The spouse takes $100,000 (1/3). The child takes $200,000. - A Virginia resident dies without a will, leaving a surviving spouse and two descendants — one mutual and one from a prior relationship. Because at least one is from a prior relationship, the spouse takes one-third = $100,000. The two descendants together take two-thirds = $200,000 ($100,000 each).
What you can do about it
A valid Virginia will gives complete control:
- Virginia will requirements. A will must be in writing, signed by the testator (or another at the testator's direction in the testator's presence), and signed by two competent witnesses (Va. Code § 64.2-403). Virginia recognizes holographic wills under specific conditions. - Self-proving affidavits are recognized. - Beneficiary designations override intestacy. - Augmented estate elective share. Under Va. Code § 64.2-308.3, a surviving spouse can elect against the will and take a share of the augmented estate (covered separately as Virginia's distinctive rule).
Who this affects most
The Virginia intestacy formula is most consequential for:
- Married VA residents in mutual-descendants families who benefit from the entire-estate rule - Surviving spouses in blended families where the one-third spousal share may be less than expected - Households with stepchildren — they take nothing under intestacy unless adopted - Estate planners coordinating Virginia-specific outcomes with overall planning
Virginia's framework is among the more spouse-favorable for mutual-descendants families. A will is the only mechanism to direct different distribution.