Opinions and Legal Insights

Who Are Next Of Kin In West Virginia?

The term “next of kin” in West Virginia is used synonymously with the term “heirs,” which means “persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.” West Virginia Code § 42-1-1(16).  Next of kin under West Virginia law include the:

  1. Surviving spouse
  2. Descendants
  3. Parents
  4. Siblings
  5. Grandparents
  6. Aunts and uncles

What Next Of Kin Inherit Under West Virginia Intestate Succession Law?

Status as next of kin for inheritance purposes matters when a decedent dies intestate, or without a will.  The next of kin that are in line to inherit from a West Virginia decedent’s intestate estate depend on the other survivors of the decedent.

Survivors Of The Decedent

Share Of Intestate Estate

Surviving spouse only

–          Spouse inherits entire intestate estate

Surviving spouse and descendants (all of whom are shared with surviving spouse, and surviving spouse’s descendants are all decedent’s descendants)

–          Spouse inherits entire intestate estate

Surviving spouse and descendants (all decedent’s descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent)

–          Spouse inherits 3/5 of intestate estate

–          Descendants inherit 2/5 of intestate estate

Surviving spouse and one or more descendants who are not descendants of the surviving spouse

–          Spouse inherits ½ of the intestate estate

–          Descendants inherit other ½ of the intestate estate

Children and descendants only

–          Children and descendants inherit entire estate by representation

Parents only, no spouse or descendants

–          Parents inherit intestate estate equally if both survive, or to surviving parent

Siblings only, no parents, spouse, or descendants

–          Siblings inherit intestate estate by representation

Grandparents only, no siblings, parents, spouse, descendants

–          ½ of intestate estate goes to decedent’s paternal grandparents equally if both survive, or to surviving paternal grandparent, or to descendants of the paternal grandparents if both deceased

–          ½ of the intestate estate passes to the maternal side in the same manner

None of the above

–          If there are no takers, then the state inherits the intestate estate

West Virginia’s intestate inheritance laws can be found at West Virginia Code §42-1-3 and 42-1-3A.

When a parent has had his or her parental rights terminated, a child does not inherit from that deceased parent, which we have written about here.

What Is an Intestate Estate Under West Virginia Law?

Next of kin heirs only inherit assets that are in the decedent’s intestate estate.  The intestate estate is any part of the decedent’s estate not effectively disposed of by will.  See West Virginia Code §42-1-2.  This section also allows a decedent to modify the right of an individual or class to success to property that passes by intestate succession under West Virginia law:

A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share.

What Assets Make Up an Intestate Estate?

Only probate assets make up a West Virginia decedent’s intestate estate.

Probate assets may include bank accounts held by the decedent with no pay on death beneficiary.

Non-probate assets are assets such as bank accounts naming a pay on death beneficiary, life insurance, or revocable trust assets.  Non-probate assets are not controlled by West Virginia intestate succession law and do not pass to next of kin heirs at law under the laws of intestate succession.  See the Probate and Non-Probate Assets Chart.

Survival Requirement of 120 Hours Under West Virginia Law

Like many other states, West Virginia has a survival requirement for intestate succession of 120 hours.  West Virginia Code §42-1-3B states:

An individual who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of intestate succession, and the decedent’s heirs are determined accordingly. If the time of death of a decedent or of an individual who would otherwise be an heir, or the times of death of both, cannot be determined, and it is not established that the individual who would otherwise be an heir survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state under section three-c of this article.

Determining status as next of kin under West Virginia law can be tricky — a West Virginia probate lawyer can help you determine your status and rights as next of kin.