Updated October 8, 2026. Quick answer: No. Virginia is a common law state. Under Va. Code 20-107.3 the court decides “which of such property is separate property, which is marital property”, and a surviving spouse can claim an elective share at death. The IRS lists nine community property states.
Virginia community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | The court classifies property as separate, marital, or part of each and may grant a monetary award (Va. Code 20-107.3) |
| At a spouse’s death | An elective share of 50 percent of the marital-property portion of the augmented estate (Va. Code 64.2-308.3) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | Virginia General Assembly (Division of Legislative Automated Systems); IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the Virginia statutes say
Virginia classifies property at divorce into separate, marital, and part separate and part marital. Section 20-107.3 says that, on that classification, “the court has the power to grant a monetary award” to either party, based on the equities and each party’s interest in the marital property. The section’s history line lists a 2026 act, chapter 470; the archived text does not show what it changed.
At divorce in Virginia
The monetary award is the section’s own phrase, a fair and equitable one. It is a court determination on the factors, not a formula.
At a spouse’s death in Virginia
Va. Code 64.2-308.3 sets the survivor’s elective share “equal to 50 percent of the value of the marital-property portion” of the augmented estate. The article applies “for decedents dying on or after January 1, 2017”. For a decedent who “dies domiciled outside this state”, the survivor’s elective share in Virginia property is governed by the law of the decedent’s domicile.
What it does to basis when the first spouse dies
Because 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 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 archived text does not show what the 2026 act, chapter 470, changed in 20-107.3.
Common mistakes
- Applying the 50 percent elective share to the whole estate; the statute applies it to the marital-property portion of the augmented estate.
- 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: community property states by state, why only half steps up in a common law state, Virginia retirement taxes, and Virginia probate cost.
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Answer againSources
- 20-107.3 Court may decree as to property and debts of the parties (Code of Virginia): https://law.lis.virginia.gov/vacode/title20/chapter6/section20-107.3/
- 64.2-308.1 Applicability; definitions (Code of Virginia): https://law.lis.virginia.gov/vacode/title64.2/chapter3/section64.2-308.1/
- 64.2-308.3 Elective share amount; effect of election on statutory benefits; non-domiciliary (Code of Virginia): https://law.lis.virginia.gov/vacode/title64.2/chapter3/section64.2-308.3/
- 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.