Estate planning can be a complex system, especially when you’re planning ahead for your family.
An estate plan ensures the security of your assets and the stability of your descendants.
So, how do you establish a plan for your children’s futures?
Dying “Intestate” in Virginia
When someone dies “intestate”, it means they died without a will in place.
A will generally advises how an estate is divided. It also lists the beneficiaries that are receiving the estate. Without a will, Virginia law implements state regulations on the inheritance process.
Virginia is a common law property state. This means that in cases of intestacy, the estate is automatically inherited by the spouse. For common law states, the marriage is viewed as a legal partnership, in which each party owns half of the marital estate.
Therefore, if there is a surviving spouse, the spouse will receive the deceased’s portion of all marital properties.
However, if there is no living spouse to leave the estate to, Virginia law designates that the estate is to pass directly to the children of the deceased.
If there is a living spouse, and there exist one or more children from a previous marriage, the surviving spouse is entitled to 1/3 of the property, while the remaining 2/3 are distributed to the children.
There is a catch to Virginia child inheritance: the children must be legally considered the children of the deceased in order to inherit.
Those eligible for Virginia child inheritance include :
- Legally adopted children
- Posthumously born children
- Children born outside of the marriage (wedlock, illegitimate, etc.)
- Grandchildren (when children are absent)
Those ineligible for Virginia child inheritance include:
- Foster children
- Stepchildren (not legally adopted)
- Children placed for adoption (or that have been legally adopted by another family)
Although it’s possible for ineligible children to inherit, it can only be guaranteed by a will or a trust.
Dying “Testate” in Virginia
A Virginia will is one method of protecting an estate plan. Dying “testate” means that the estate is to be divided as it has been decided by the deceased in the will. Those who are named by the deceased will receive the predetermined shares of the estate.
Virginia common law carries distinctions between real estate and personal property. The real estate (houses, land, etc.) owned by the deceased will pass directly to the spouse when there is an absence of a will.
The personal property (money, possessions, vehicles, etc.) will pass through probate in order to determine who will receive which shares of the property.
Who gets what?
In a Virginia will, you are in charge of your estate. You determine who will receive which property, who will be the secondary beneficiaries, as well as placing your own restrictions and clauses to secure your estate posthumously.
The difference between a testate and intestate property division is direction.  With a will, you can manage how you want your assets to be handled.
Rules for Virginia Child Inheritance
In Virginia, it is common for parents to list their children as primary or secondary beneficiaries of their shared estate. There are many options for naming children as beneficiaries.
Minor Children as Primary/Alternate Beneficiaries
If you name your children as the primary beneficiaries of your estate, you will need the absence of a surviving spouse, or the written consent of the surviving spouse.
As previously stated, the surviving spouse is the automatic beneficiary of your estate under Virginia common law. You can bypass this legislation by providing the written testimony of both parties along with a will directing the preferred distribution.
Under common law, it is not possible to disinherit your spouse because the marital property is still considered equally shared property . You cannot disinherit someone from their legal share of the property unless they willingly “disclaim”, or refuse it.
Naming a child as the alternate beneficiary to your spouse is generally wiser if you’re planning an estate to leave to smaller children.
As an alternate beneficiary, your children will receive the assets of your estate after the death of your spouse.
Restricting Minor Beneficiaries
Virginia law restricts child property ownership that exceeds $5,000. If the estate being inherited exceeds this threshold, a “custodian” or “property guardian” will need to be appointed. This individual is the legal entity that will reside over the estate until the beneficiary reaches the age threshold.
In Virginia, the age threshold of child inheritance is 18. However, this threshold can be raised to 21 if there is a valid reason for extending the custodianship.
Adult Children as Primary/Alternate Beneficiaries
When you plan to leave your estate to your adult children, the circumstances change. While you are still unable to disinherit your spouse, you are able to:
- Designate the amount of property left to each child
- Disinherit children
- Establish non-ultimatum clauses to be followed (i.e. using the property exclusively for income, ability/inability to reside on the property, use of funds exclusively for education purposes, etc.)
- Designate the amount of property left to children of prior marriages
(Note: These are able to be legally established when the children are minors, however it is uncommon to settle these matters when the beneficiaries are adolescents.)
Dividing the Estate Between Your Children
Most often, the division of an estate among children is equal. However, some Virginia child inheritance decisions may require you to advise otherwise in your will.
- A disabled beneficiary may need to receive life-long care, and may need a correspondingly large (or full) share of the estate.
- A prosperous and successful beneficiary may be in lesser need of the inheritance than their less successful counterparts.
- A beneficiary caring for children may be in greater need of inheritance than a counterpart who is childless.
- A beneficiary who is a child of the deceased’s previous marriage may be included as a part of the estate’s inheritance.
While these are only a few examples, there are numerous reasons for establishing an unequal inheritance among children. However, these specifications are only valid if they are explicitly included in your will.
If you do not include your specific intentions regarding your estate’s division, the process of Virginia inheritance will deduce that each child is to receive an equal share.
Disinheritance is the legal ability to withhold a child’s inheritance.These reasons can be practical or personal, but your wishes must be explicitly expressed in your will.
To reiterate, spousal disinheritance is prohibited. However, the legal ability to disinherit children remains.
The only way to disinherit a child is by including these wishes in a will. If you do not explicitly include your intention to disinherit a child, there will be no documented provision and your estate will be divided equally between your beneficiaries.
It is important to note that disinheritance in a will is not always intentional. When drafting your will, you will need to name your beneficiaries (in this case, your children) outright.
Naming certain children to receive particular estate items is not abnormal when planning your estate.
However, if you name only one or some of your children to receive particular items, but do not list your remaining children as beneficiaries to the estate, the Commonwealth of Virginia may not consider them beneficiaries.
When including your wishes for your estate’s division, be sure you are naming all intended beneficiaries. If you do not have specific items for each to receive, you can list them as general beneficiaries. The remaining shares will be determined in probate.
Leaving partial inheritance – or disinheriting a child – can cause conflict during the probate process.
A no-contest clause ensures the protection of your wishes against appeal. If a beneficiary is unhappy with their share of the inheritance, they have the opportunity to appeal to a judge.
If your will contains a no-contest clause, the beneficiary willingly forfeits all rights to their inheritance if they are unsuccessful in their appeal. The inclusion of a no-contest clause can be helpful to protect your property from being granted to disinherited children, or children who receive smaller portions of the estate.
Other Forms of Virginia Child Inheritance
While a will is a cheaper, easier method to leave an estate to your children, there are a number of legal ways you can pass on your estate to them:
- A child’s trust
- A family pot trust
- Children as life insurance beneficiaries
- Living trust
- Pay-on-death deeds and designations
- Gifting property before death
While there are many methods of protecting your assets and providing for your children, making a will is one of the best methods of establishing your Virginia child inheritance wishes.
Whether you want to plan your child’s inheritance, officiate your child’s disinheritance, name the trustee of a minor’s estate, or draft a no-contest clause, you will want to consult with an attorney.
Legal advising is recommended when writing your will or establishing your trust. Schedule your consultation with our Virginia Estate Planning attorney to begin planning your estate.
 J. Rodney Johnson, Inheritance Rights of Children in Virginia, 8 U. Rich. L. Rev. 41 (1973).
 Robert E. Kuelthau, Validity of No-Contest Clauses in Wills, 43 Marq. L. Rev. 528 (1960).