Marriage, Divorce, and Death: West Virginia Property Rights

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid, Inc.

Understanding property classifications and division is crucial whenever one gets married. The rules that govern marital property in West Virginia affect an individual during marriage, after divorce, and even after death. There are (1) rights during marriage, (2) rights at divorce, and (3) rights at death.

West Virginia follows a doctrine known as equitable distribution in divorces. This means that, when a couple divorces, the court does not automatically split everything down the middle. Instead, the law requires an equitable (not equal) division of marital property. Generally, marital property includes all assets and debts acquired by either spouse during their marriage, regardless of whose name is on the title. This may include real property purchased during the marriage, household furnishings, wages, retirement accounts, and vehicles.

Property acquired prior to marriage, inheritances, and personal gifts given to one specific spouse are typically considered separate property. However, this distinction is not always straightforward. Like a caterpillar into a butterfly, separate property can transform into marital property if it is commingled with marital assets or used in ways that benefit both spouses. For example, if one spouse inherits money and uses that inheritance to purchase real property titled in both spouses’ names, that property may be treated as marital property. Likewise, if a spouse deposits inherited funds into a joint bank account and the money is used for shared expenses, the court will likely hold the inheritance lost its separate property status and is marital property instead.

When determining how to distribute marital property, West Virginia courts look at various factors (e.g. the marriage length, the financial and non-financial contributions of each spouse, the parties’ ages, the parties’ health, each spouse’s income and earning capacity, whether either spouse supported the other’s education or career growth, et cetera). Although West Virginia is a no-fault divorce state, meaning that courts do not assign blame for the breakup of the marriage, misconduct that has financial consequences (e.g., waste or dissipation of marital assets) may be considered in dividing the property.

Marital property considerations also arise when one spouse passes away. If the deceased spouse had a valid will, the estate is distributed according to it. However, even a will cannot fully disinherit a surviving spouse without legal planning. West Virginia law protects surviving spouses by allowing them to elect to take a portion of the deceased spouse’s estate, regardless of what the will instructs. This is known as the “spousal elective share,” and it ensures that a surviving spouse is not left completely unprovided for by any disinheritance. The share’s amount depends on the marriage length and the estate’s total value, including certain non-probate assets.

In the absence of a will, the estate will be distributed pursuant to West Virginia’s intestacy laws. Generally, the surviving spouse receives a significant portion of the estate, but the exact amount depends on whether the deceased had children and whether those children were also children of the surviving spouse. This rule is especially significant in multiple marriages, where one or even both spouses have children from previous relationships.

For those who are older, diligent estate planning is essential to ensure that property passes according to their wishes. Like tools in your toolbox, a combination of documents (e.g., wills, trusts, and prenuptial/postnuptial agreements) can help clarify property rights and reduce the likelihood of future conflict. Particularly, seniors entering into secondary marriages should be mindful of how their property is titled and what legal documents are in place to protect their families, themselves, and their dynasty.

In sum, the legal distinction between marital and separate property can be complex, especially when they affect your home, retirement, or even legacy. For further aid, please contact a licensed attorney. West Virginia Senior Legal Aid is dedicated to defending West Virginia seniors’ rights.