Most clients that reach out to us believe that if something happens to them, their assets will automatically go to their spouse. However, in Virginia, this is not always the case.
Examples of situations where the assets would not go (or go entirely) to the surviving spouse include but are not limited to:
1) The decedent had children with someone other than the surviving spouse. If decedent passes away with out a will outlining where they want their assets to go and they have children with someone other than their spouse, two thirds (2/3) of the estate will go to the decedent’s children and one third (1/3) will go to the surviving spouse. See Virginia § 64.2-200.
2) If the decedent and the surviving spouse believe that they are married under “Common Law Marriage”. Virginia does not recognize common law marriage, and as such, unless you qualified as married under the common law of another state (i.e. you lived in another state long enough to be recognized as married under the common law of that state) any assets would pass to the legal heirs of the decedent. (“Although Virginia does not recognize domestic common-law marriages, Offield v. Davis, 100 Va. 250, 253, 40 S.E. 910, 911 (1902), it does extend comity to such unions “valid under the laws of the jurisdiction where the common-law relationship was created.” Farah v. Farah, 16 Va. App. 329, 334, 429 S.E.2d 626, 629 (1993).
3) If the decedent had minor children. Minor children of a decedent have a right for a Family Allowance. See Virginia § 64.2-309.
There are just a few examples. If you have questions as to how your assets would transfer, whether you do not have a will or would like your prior will reviewed, or if you would like to discuss putting an estate plan in place – our attorneys can help. Feel free to reach out to our office at (804) 423-1382 or at info@wmmlegal.com to set up an initial consultation.
