The Spouse's Share
W. Va. Code § 42-3-1 — a share of the estate that grows with the years married, up to half, claimed within nine months
A surviving spouse may elect, against the will or the intestate share, to take a percentage of the augmented estate that depends on how long the two were married.
| Married | The elective share |
|---|---|
| MarriedLess than 1 year | The elective shareSupplemental Amount Only |
| Married1 year but less than 2 years | The elective share3% of the augmented estate |
| Married5 years but less than 6 years | The elective share15% of the augmented estate |
| Married10 years but less than 11 years | The elective share30% of the augmented estate |
| Married15 years or more | The elective share50% of the augmented estate |
Nine months, or six after probate. The spouse files the petition in court and gives it to the personal representative within nine months after the death or within six months after the will is probated, whichever limitation later expires.
The percentage climbs each year in between, and a small total is raised to a supplemental amount. A particular estate is a question for a licensed West Virginia attorney.
Sources for this section (2)
- W. Va. Code § 42-3-1 — Right to elective share
- W. Va. Code § 42-3-4 — Proceeding for elective share; time limit
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed West Virginia attorney.