The law protects surviving spouses. If you are not satisfied with your share under the will, you may elect against the will, which means you may petition the court to disregard the will and award you an amount of your spouse’s estate set by law. You may only petition for this elective share within nine months of your spouse’s death or within six months of the probate of the estate, whichever is later.
The legislature passed laws to prevent one spouse from disinheriting another. One protection from disinheritance is the elective share provision. Another is the notification requirement.
The elective share provision allows a spouse to elect against the deceased spouse’s will to collect an amount of the estate set by law. The amount a spouse can take depends on the length of the marriage. After 15 years, the spouse can collect the largest amount–50%. The amount is taken from the augmented estate. Many factors are considered in determining what makes up the augmented estate, and then in determining how much would go to the surviving spouse. The augmented estate includes all property from which the deceased benefitted. The surviving spouse’s wealth is also considered.
The notification requirement also protects surviving spouses. A person who transfers land must notify his/her spouse. This notice is required so that your spouse cannot give his/her land away without your knowing about it.
For more information, see: W. Va. Code §§ 42-3-1 to -2, 42-3-4, 42-3-7, 43-1-2 (2015).