Intestate Descent and Distribution Flashcards
When Intestate Succession Rules Apply
The intestate succession rules apply when:
1. the decedent left no will
2. the decedent’s will is denied probate, or
3. the decedent left a will but the will does not make a complete disposition of the estate.
Intestate Share of Surviving Spouse - No Descendants
If the decedent is survived by a spouse but no descendants, the surviving spouse inherits the entire estate.
Intestate Share of Surviving Spouse - Descendants Sharing Common Parent
If the decedent is survived by descendants, all of whom are also descendants of the surviving spouse, the surviving spouse inherits the entire estate.
Intestate Share of Surviving Spouse - ONE-THIRD, Descendants Not Sharing Common Parents
If the decedent is survived by descendants, at least one of whom was not the surviving spouse’s descendant, the spouse inherits one-third of the estate, and the other two-thirds passes to the decedent’s descendants
Zero-Desertion or Abandonment
If a spouse willfully deserts or abandons the other spouse and the desertion continues until the abandoned spouse’s death, the deserting spouse is barred from all statutory rights in the estate.
General Rule of Order
- Surviving Spouse
- descendants
- Parents
- Descendants of Parents
- Grandparents and Descendants of Grandparents
- To Heirs of Deceased Spouse
- No “Laughing Heir” Statute
Intestate Share: Descendants
Descendants are people related to the decedent in a direct line. If all of the decedent’s children survive, each child receives an equal share. If a child predeceases the decedent and leaves issue who survive the decedent, shares will be calculated per capita with representation.
Intestate Share: Parents
If the decedent is not survived by a spouse or descendants, the estate passes to the decedent’s parents or surviving parent.
Intestate Share: Descendants of Parents
If no spouse, descendants, or parents survive the decedent, the estate passes to the decedent’s brothers or sisters.
Intestate Share: Grandparents and Descendants of Grandparents
If none of the forgoing survive the decedent, one-half of the estate passes to the maternal grandparents and the other one-half passes to the paternal grandparents.
If, in either side there is no surviving grandparent or their descendants, the estate will pass to the next nearest lineal ancestors and the descendants of such ancestors.
Intestate Share: To Heirs of Deceased Spouse
If the decedent was not survived by any living heirs on the maternal or the paternal side, the estate passes to the heirs of the decedent’s deceased spouse, as though the deceased spouse had survived and passed intestate.
No “Laughing Heir” Statute
Virginia has no laughing heir statute, which would cut off the inheritance rights of more remote relatives. A person can qualify as an heir, no matter how remotely related to the decedent.
When does the estate escheats to the Commonwealth?
ONLY if there are no heirs of the decedent or their spouse.
Disinherit
To disinherit someone, the testator must make a complete disposition of their estate by will. Any portion passing by intestacy is governed by the intestacy statute, not the testator’s will.
Computing Shares - Per Capita Representation
In Virginia, descendants take per capita with representation. The decedent’s property is divided into equal shares at the first generational level with living takers.
Each living person and each predeceasing descendant who left living issue gets a share. The shares of predeceasing descendants then pass to their issue by right of representation.
