Not all of your property goes through probate after death. Non-probate assets, such as life insurance, go directly to a named beneficiary, which is often a surviving spouse. In West Virginia, another common non-probate asset is jointly owned property – such as real estate, bank accounts, or vehicles – which passes to the surviving owner if the title documents specify the owners were joint tenants with the right of survivorship. If you and your spouse own property as joint tenants or tenants by the entirety with right of survivorship, that property will pass automatically to you when your spouse dies. However, West Virginia does not automatically assume joint ownership includes a right of survivorship. Without the proper wording in your title documents, West Virginia may interpret your ownership status as a tenancy in common, which means the property will pass under your will as a probate asset instead of directly to your spouse.
In West Virginia, anyone of sound mind and at least 18 years old can make a will to distribute his probate assets. Your will is valid under West Virginia law if it is in writing, signed by you -- or at your direction and in your presence -- and signed by two witnesses. If you divorce after you make your will, West Virginia law voids provisions in your will that favor your ex-spouse, but the will itself remains valid. For example, if a will you made before your divorce says your wife inherits all of your property, she will inherit nothing under that will if you die after your divorce; instead, your property will go to the other beneficiaries named in your will.
If you die without a will, Chapter 42 of West Virginia Code will determine who inherits your probate assets. Your surviving spouse will inherit your entire estate only if neither you nor your surviving spouse has surviving children from a previous relationship, including children born out of wedlock. If you have surviving children from a previous relationship, such as children from a first marriage, your spouse will inherit half of your estate. If you don’t have surviving children from a previous relationship but your spouse does, your spouse will inherit three-fifths of your estate and your other heirs will inherit the remaining two-fifths.
Disinheriting a Spouse
If you wish to disinherit your spouse under the terms of your will, you may not be able to do so under West Virginia law. Surviving spouses in West Virginia have the right to take what is called an elective share of the estate instead of inheriting under the will or as provided under intestacy laws. The surviving spouse’s share depends on the length of the marriage, up to 50 percent if the couple was married 15 years or more.