What the rule says
West Virginia's intestacy framework, codified at W. Va. Code § 42-1-3, follows a UPC-influenced approach with West Virginia-specific fractions:
- Spouse and all descendants are mutual: The spouse takes the entire estate. - Spouse and at least one descendant from prior relationship of decedent: The spouse takes three-fifths (3/5). Descendants take two-fifths (2/5). - Spouse and at least one descendant from prior relationship of spouse (not decedent's child): The spouse takes three-fifths. Decedent's other beneficiaries take the remaining two-fifths. - Spouse but no descendants: The spouse takes the entire estate. - Descendants but no spouse: Descendants take the entire estate by representation.
The 3/5 spousal share is distinctive — most UPC states use a dollar floor + half formula or 1/2 share for blended families. West Virginia's flat 60% / 40% split for blended families produces specific outcomes.
What this means in practice
- WV resident dies without a will, leaving spouse and three mutual children. Estate $400,000. Spouse takes the entire $400,000. - WV resident dies without a will, leaving spouse and one child from prior relationship. Estate $400,000. Spouse takes $240,000 (3/5). Child takes $160,000 (2/5).
WV's framework is more spouse-favorable than 1/2 / 1/2 states like SC, KY, MS for blended families — the 3/5 spousal share preserves more of the estate for the surviving spouse.
What you can do about it
- WV will requirements (W. Va. Code § 41-1-3). A will must be in writing, signed by the testator, and signed by two competent witnesses. - WV recognizes holographic wills under § 41-1-3 — entirely handwritten and signed. - Self-proving affidavits are recognized. - Beneficiary designations override intestacy. - Spousal election. Covered separately as WV's distinctive rule.
Who this affects most
WV's intestacy formula is most consequential for married WV residents in mutual-descendants families (favorable) and blended families with the 3/5 share.