Intent and Intestacy in Virginia

By, Alexandra Wallach, Elder & Disability Law Clinic Student, Fall 2022

One of the governing principles of property rights in the United States is freedom of disposition.[1] This is the idea that each person has a right to decide what happens to their property after death.[2] The law, barring a few limited exceptions, strives to give the maximum effect to a decedent’s intent.[3] When a person dies with a will, courts generally give full effect to the provisions specified to best honor the intent of the decedent.[4]

When a person dies without a will, however, it is up to the state to decide how to disburse their property.[5] Intestacy statutes, which determine where a decedent’s property goes if the decedent does not leave a valid will, are designed to mimic the presumed intent of the decedent.[6] When a person does not leave a will, the state does its best to distribute their property as it thinks they would have done if they had left a will.[7]

Virginia, like many states, assumes that a decedent would want their property to go to their family. Generally in Virginia, property first passes to a surviving spouse, then children and other descendants.[8] If there are no children, spouse, or other descendants, then property would pass to other relatives such as parents or siblings.[9] Virginia statute specifies how the property is to be distributed and divided between the interested parties; these statutes have special provisions for those who have predeceased descendants, adopted children, stepchildren, and half siblings, just to name a few.[10] If no relatives can be located, property will pass to the Commonwealth.[11]

Intestacy rules are helpful in estate planning because they are a default set of rules that people can use when creating their own will.[12] Definitions and distribution methods can be borrowed from the statutes.[13] These statutes already have a history of interpretation and case law, which makes them a reliable source to use.[14]

The con to having a set of default rules is that if you do not like them, you must opt out of using them.[15] However, it is relatively easy to opt out of intestacy statutes: have a will.[16] By having a will, you can divide your property as you wish, including between family members, friends, and charities.[17] Wills also allow a person to specify if specific items are to be given to specific persons, such as jewelry or other family heirlooms.[18] Because intestacy laws must cover a broad range of situations, they provide information only of how an estate in total is to be passed and divided, and do not allow for considerations such as specific property items or history of charitable giving.[19]  

Overall, intestacy statutes fill a gap for those who pass without a will. They do a good job of capturing what the intent would be of most people who would write a will: to pass their possession along to their family. However, the best way to assure that your property passes as you would like is to have a valid will.

[1] See generally Browne C. Lewis, Law of Wills, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] See generally Va. Code Ann. §§ 64.2-308, -200.

[9] Id.

[10] See generally Va. Code Ann. §§ 64.2-201 to -202.

[11] See generally Va. Code Ann. § 64.2-201.

[12] See generally Browne C. Lewis, Law of Wills, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.