Inheritance for Adopted and Blended Families in Virginia

By, Alexa Deutsch, Elder & Disability Law Clinic Student, Spring 2022

Families and households in the United States take a variety of different shapes. For example, according to the Pew Research Center, one in six children in the United States is living in a blended family.[1] The United States Census Bureau defines a blended family as “a household with a stepparent, stepsibling, or half-sibling.”[2] Additionally, 2020 Census Bureau estimates suggest that almost 1.5 million household children are adopted.[3] In the event an unfortunate death in the family occurs, it is important to know how a person’s estate may be distributed to family members who do not have a fully biological connection. An existing Last Will & Testament makes distribution clear; however, if a person does not execute a will, intestacy rules will come into effect. Intestacy rules typically provide a clear line for biological family members to receive a share of an immediate relative’s estate, but the lines are more complex for blended and adoptive families. Intestacy laws may vary by state; therefore, Virginia will be the primary focus here.

            Adoption presents a variety of considerations when a biological or adoptive parent passes away. In Virginia, the definition of a child who receives a share in an estate under intestacy rules includes adopted children.[4] If a child is adopted into a completely new family, that child can no longer receive a share in their biological parents’ estates. On the other hand, if a stepparent (who is married to one of the child’s biological parents) adopts the child, that child is entitled to a share of the stepparent’s and both of their biological parents’ estates.[5] These rules only apply to children; once a child is adopted, their biological parents cannot receive a share of the child’s estate if the child passes first.

For stepfamilies, Virginia law has been crafted to address the potential conflicts between stepparents and children. The law prioritizes biological children over a spouse who is not a biological parent; in other words, a father’s biological son has a larger share of his estate than his second wife, who is a stepmother to the biological son.[6] More specifically, Virginia law prescribes that, if a stepparent survives the deceased parent, the deceased parent’s biological children receive two-thirds of the estate.[7] The stepparent receives the remaining third.

            Another complexity Virginia intestacy rules presents arises when a person passes away after their spouse, children, and parents. In this case, the next relatives in line to receive parts of the estate are the person’s siblings.[8] Like full biological siblings, half siblings are entitled to a share of that person’s estate.[9] However, Virginia law requires a different calculation method than what is used for biological siblings. To illustrate, imagine person A passes away with two whole siblings, B and C, and two half siblings, D and E. A’s does not have a spouse or children, and their parents have already passed away. To calculate how A’s estate distributes to B, C, D, and E, the following calculation would be made:

            Whole siblings receive double the amount that half siblings receive,[10] so whole siblings will be represented by the value of 2x. Half siblings will be represented by the value of y. To figure out how many parts the A’s estate will be divided into for B, C, D, and E, x equals 2 (B and C are whole siblings) and y equals 2 (D and E are half siblings). Simply add 2(2) + 2 to get six total parts of the estate. Whole siblings receive two parts, so B and C would each get 2/6 (or 1/3) of A’s estate. Half siblings receive one part, so D and E would each get 1/6 of A’s estate.

            While adoptive and blended families do not comprise a majority of households in the United States, they will always exist. For those who are a part of these households, it is incredibly important that family members either draft a will or understand the intestacy rules that would govern in the event of unexpected death.

[1] The American Family Today, Pew Research Center (Dec. 17, 2015)

[2] Id.

[3] Relationship to Householder for Children Under 18 Years in Households, 2020: ACS 5-Year Estimates Detailed Tables, United States Census Bureau,%2404000%24001&tid=ACSDT5Y2020.B09018.

[4] Va. Code Ann. § 64.2-102(1).

[5] Id.

[6] Va. Code Ann. § 64.2-200(A)(1).

[7] Id.

[8] Va. Code Ann. § 64.2-200(A)(4).

[9] Va. Code Ann. § 64.2-202(B).

[10] Id.