Ashford International Law P.C.

Where a Virginia domiciliary dies without a valid last will and testament, the Code of Virginia determines who receives the personal property that passes through the estate, and Virginia law also governs the descent of Virginia real estate, whatever the domicile of its owner. The rules are set out in Chapter 2 of Title 64.2 of the Code of Virginia. Virginia’s statute is favorable to the surviving spouse, with one significant exception for children from another relationship. This page sets out the rules as they stand in September 2026. The overview of statutory succession compares Virginia with Maryland, the District of Columbia, California and Germany.

Summary

1. The surviving spouse receives the entire estate, unless the decedent leaves children or descendants of children who are not also the spouse’s. In that case the spouse receives one-third and the descendants two-thirds.
2. Where there is no spouse, the estate passes to the descendants, then to the parents, then to the siblings and their descendants, and then in two halves to the paternal and maternal kindred.
3. Relatives of the half blood take one-half of the share of relatives of the whole blood. An heir must survive the decedent by 120 hours.
4. Virginia recognizes no registered domestic partnership. An unmarried partner inherits nothing.
5. Virginia levies neither an estate tax nor an inheritance tax, but a probate tax is payable on the grant of administration.

Part I. The estate subject to the statute

The statute governs the real estate of the decedent and the personal estate that remains after payment of debts, expenses and allowances (Va. Code §§ 64.2-200 and 64.2-201). Property held by spouses as tenants by the entirety, property held in joint tenancy with a right of survivorship, accounts with payable-on-death or transfer-on-death designations, life insurance, retirement accounts and trust assets pass outside the estate. Title to Virginia real estate of an intestate decedent vests in the heirs at death, subject to its use for the payment of debts. The administrator’s authority over that real estate is therefore limited, and a sale ordinarily requires the participation of the heirs, a court order or compliance with the statutory procedure for a sale by the personal representative.

Part II. The surviving spouse

Under Va. Code § 64.2-200(A)(1), the surviving spouse takes the entire estate unless the decedent is survived by children or descendants of children who are not also children or descendants of the surviving spouse. If such descendants survive, the spouse takes one-third and the descendants take two-thirds.

Va. Code § 64.2-200(A)(1).

The rule operates in one direction only. The spouse’s own children from an earlier relationship do not reduce the spouse’s share. A single child of the decedent from an earlier relationship, by contrast, reduces the spouse’s share to one-third, and the two-thirds then passes to all of the decedent’s descendants, including the children of the marriage.

A spouse reduced to one-third may be entitled to more by claiming the elective share. For deaths on or after January 1, 2017, the elective share is measured by reference to the marital-property portion of the augmented estate, which includes certain non-probate transfers and depends on the length of the marriage (Va. Code § 64.2-308.3 and following). What the spouse receives by intestacy is credited against the elective share. The claim must be made within the statutory period, and the calculation requires a full valuation of the augmented estate.

Property passing to a spouse who is not a United States citizen does not qualify for the federal marital deduction unless it passes to a qualified domestic trust (IRC § 2056(d)).

Part III. Descendants and other kindred

Where there is no surviving spouse, or as to the two-thirds described above, the estate passes to the decedent’s children and their descendants. Where the decedent leaves no descendant and no spouse, the estate passes in the following order (Va. Code § 64.2-200):

1. to the parents, or to the surviving parent;
2. to the brothers and sisters and their descendants;
3. in two equal halves to the paternal and maternal kindred: in each line first to the grandparents, then to the uncles and aunts and their descendants, then to the great-grandparents, and then to the brothers and sisters of the great-grandparents and their descendants, and so on through more remote ancestors and their descendants;
4. if one line has no kindred, the whole passes to the other line;
5. if neither line has kindred, to the kindred of the most recent deceased spouse, provided the decedent and that spouse were married at the spouse’s death, as if the spouse had died intestate;
6. failing all of these, the estate escheats to the Commonwealth.

The Virginia order thus extends considerably further than the Maryland or District of Columbia order before the estate escheats, and admits the relatives of a deceased spouse before the Commonwealth. Stepchildren inherit only in that last capacity, as kindred of the deceased spouse.

Part IV. Particular family situations

Part V. Administration without a will

An administrator qualifies before the clerk of the circuit court. During the first 30 days after death, only a sole heir, or an heir holding written waivers from all other heirs, may qualify. After 30 days any heir may apply, and after 60 days a creditor or another person may do so (Va. Code § 64.2-502). At qualification, the administrator must record a list of heirs, including with the clerk of each circuit court in whose jurisdiction the decedent’s real estate is located; if no one qualifies within 30 days, an heir may record the list (Va. Code § 64.2-509).

The administrator gives bond in an amount at least equal to the value of the personal estate. A surety is required unless all heirs serve as administrators or the personal estate does not exceed $35,000 (Va. Code §§ 64.2-504, 64.2-505 and 64.2-1411). A person who resides outside Virginia may qualify after consenting to service of process, and a surety is then required unless a Virginia resident qualifies as co-administrator or the court waives the requirement (Va. Code § 64.2-1426). Virginia imposes no citizenship restriction on administrators.

After qualification, the administrator files an inventory with the commissioner of accounts within four months (Va. Code § 64.2-1300) and periodic accounts thereafter. A state probate tax of $0.10 per $100 of the value of the estate subject to administration is payable where that value exceeds $15,000, and cities and counties may impose an additional local tax of one-third of the state tax (Va. Code §§ 58.1-1712 and 58.1-1718). Where the personal estate does not exceed $75,000, it may be collected by small asset affidavit once 60 days have passed since death, without qualification (Va. Code § 64.2-601).

Part VI. Tax consequences

Virginia has levied no estate tax for deaths since July 1, 2007 and has no inheritance tax. For deaths in 2026, the federal basic exclusion amount is $15,000,000. Where the one-third rule applies, the two-thirds passing to the descendants does not qualify for the marital deduction. In a large estate, federal estate tax that a will in favor of the spouse would have deferred may therefore become payable at the first death. The unused exclusion of the first spouse to die is preserved for the surviving spouse only if a federal estate tax return is filed and the portability election is made.

Part VII. Heirs and assets outside Virginia

Foreign nationality does not prevent a person from inheriting Virginia property, and Virginia law expressly permits a foreign national to acquire and hold real estate by descent (Va. Code § 55.1-100). The practical questions concern the qualification of a nonresident administrator, the documentation of heirship, and the withholding and taxpayer identification requirements when a foreign heir sells inherited Virginia real estate.

Where a Virginia domiciliary owns real estate in Germany, a German court applies Virginia law as the law of the last habitual residence, but accepts Virginia’s reference to the law of the place where the real estate lies (EU Succession Regulation, Arts. 21 and 34(1)(a)). The German real estate therefore passes under German statutory succession, as described on the page on statutory succession in Germany. Virginia real estate of a decedent living abroad descends under the Virginia statute, whatever the law of the decedent’s residence provides.

Part VIII. Practical steps

1. Establish the decedent’s domicile and list the assets that pass through the estate, separately from assets held by the entirety, jointly or with a beneficiary designation.
2. Identify all descendants of the decedent and determine whether any of them is not also a descendant of the surviving spouse.
3. Where the spouse is limited to one-third, evaluate the elective share before the statutory deadline.
4. Determine which heir will qualify as administrator, and obtain the waivers needed to qualify within the first 30 days.
5. Record the list of heirs in each jurisdiction where real estate is located, and address the probate tax, the bond and the surety.
6. Where heirs live abroad, arrange the documentation of heirship and the tax identification numbers required for a later sale of real estate.

Conclusion

For a first marriage with children of that marriage, the Virginia statute produces the result most couples intend: the entire estate passes to the survivor. For blended families, the statute divides the estate between the spouse and all of the decedent’s descendants, and the correction through the elective share is complex. A will, coordinated with the titles to real estate and the beneficiary designations, avoids both results.

How the firm helps

Ashford International Law PC advises Virginia families on estate plans and advises administrators and heirs on the settlement of Virginia estates, including estates with heirs or assets in Europe. The firm’s page on estate settlements in Virginia describes the procedure in further detail. The overview of statutory succession compares Virginia with the other jurisdictions in which the firm’s attorneys are licensed, and the article on dying without a last will and testament in Washington DC, Maryland and Virginia compares the three neighboring statutes. Related material is available on the firm’s pages on non-US beneficiaries and non-US decedents.

This page is intended for general educational purposes and does not constitute legal or tax advice, nor does it create an attorney-client relationship. The matters described depend on the specific facts, the countries and states concerned, and the law in effect at the relevant time. Statuses and figures are stated as of September 2026 and must be confirmed before any decision.