Dying without a will is called dying intestate. In most circumstances, a spouse will receive all of the estate when the other spouse dies intestate. However, there are two circumstances in which the surviving spouse will not take the entire estate.
First, the surviving spouse will take less than the entire estate when he or she has a child from another marriage and the couple has children together. An example of this situation would be where the deceased spouse, in addition to having children with you, is a step-parent of your child. In these situations, the surviving spouse takes 3/5 of the estate, and the children common to you both (but not step-children) take 2/5.
The other instance occurs when the spouse who dies has a child from another marriage. This situation would occur if you, as the surviving spouse, are the step-parent of the deceased spouse’s child. In such circumstances, the child would take 1/2 and the surviving spouse would take 1/2.
When a person dies intestate, any property that does not go to the surviving spouse will pass down in the following order: descendants, parents, brothers and sisters, grandparents, and other relatives.
For more information, see: W. Va. Code § 42-1-3 (2015); John W. Fisher II, Intestate Succession and Elective Share Law, West Virginia Continuing Legal Education (1993).