Updated October 8, 2026. Quick answer: No. West Virginia is a common law state. At divorce, W. Va. Code section 48-7-103 says “all marital property is to be divided equally between the parties” absent a valid agreement, though the court may alter the split, and at death the surviving spouse has an elective share that grows with the length of the marriage. The IRS lists nine community property states.
West Virginia community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | Marital property is presumed divided equally, and the court may alter the split on listed factors (W. Va. Code 48-7-103) |
| At a spouse’s death | An elective share from 3% to 50% of the augmented estate by length of marriage (W. Va. Code 42-3-1) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | West Virginia Legislature; IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the West Virginia statutes say
West Virginia’s statute uses the terms marital property and separate property. It is one of the few common law states that starts from an equal split: “all marital property is to be divided equally between the parties” absent a valid agreement.
At divorce in West Virginia
The court may alter the equal split after weighing monetary and nonmonetary contributions, the effect on earning ability and dissipation of marital property, and the section says “fault or marital misconduct shall not be considered”.
At a spouse’s death in West Virginia
W. Va. Code 42-3-1 gives the survivor a “right of election, against either the will or the intestate share” of the augmented estate. The percentage scales by years of marriage: it starts at “1 year but less than 2 years 3% of the augmented estate” and reaches “15 years or more 50% of the augmented estate”. The section also sets a “supplemental elective-share amount equal to $25,000” less amounts already received.
What it does to basis when the first spouse dies
Because West Virginia is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.
Computed illustration, not tax advice: suppose a West Virginia couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.
What the documents do not say
- The percentages for the years between those two rows are in the section’s table; this page quotes only its first and last rows.
Common mistakes
- Assuming a new spouse can claim half of the augmented estate; the 50% applies only at 15 years or more.
- Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.
Related: why only half steps up in a common law state, West Virginia retirement taxes, and West Virginia probate cost.
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Answer againSources
- W. Va. Code 48-7-103 Division of marital property without a valid agreement: https://code.wvlegislature.gov/48-7-103/
- W. Va. Code 42-3-1 Right to elective share: https://code.wvlegislature.gov/42-3-1/
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.