Wills in Virginia

by Beverly Bird
You cannot disinherit your spouse in Virginia.

You cannot disinherit your spouse in Virginia.

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Writing a will allows you to decide before your death who is going to get your assets, who is going to oversee the process of transferring them to those people and who will be the guardian of your minor children after your death, if you have any. To a great extent, you take the power of these decisions away from the court. Laws regarding wills vary from state to state. Title 64.1 of the Code of Virginia lists the state's requirements and provisions for wills and estate matters.

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Any mentally competent adult over the age of 18 can make a will in Virginia. You will need two witnesses when you sign it and there is no law that prohibits them from also being beneficiaries. However, if you write your whole will out by hand, witnesses are not required, provided that you also sign and date it.

Laws Regarding Spouses

If you omit your spouse from your will or attempt to leave him some minimal amount, he is entitled by law to an elective share of your estate. This means that rather than accept what you left him -- if anything -- in your will, he can elect to take a percentage of your augmented estate, not your probate estate, instead. An augmented estate usually includes the value of assets such as life insurance policies that would pass directly to a beneficiary and would not pass through probate. The elective share in Virginia is one-third if you have children, either together or from another relationship, and one-half if you do not have children. However, divorce or annulment automatically extinguishes any provisions or bequests you made to him in your will unless your will specifically states that you want your ex-spouse to inherit even if the marriage ends.

Laws Regarding Children

If you leave assets to your children in your will and they are younger than 18 years of age, they will have to go through court guardianship proceedings. The court will appoint a guardian to oversee and control those assets on their behalf.

Intestacy Laws

Dying intestate means dying with out a will. If you pass away in Virginia and you don’t leave a will, the court will decide who gets your assets. Your spouse is first in line. If you don’t have children from a different relationship, she gets your entire estate. If you do have children from another relationship, they would share two-thirds of your estate and your spouse would receive one-third. If you are not married and have no children, then your parents would get all your assets, and if your parents are deceased, your siblings would divide your estate equally.