Updated September 5, 2026. Quick answer: West Virginia is a genuine marriage-length sliding-scale state: the share rises with years married rather than sitting at one flat number. under 1 yr supplemental amount only, 1-2 yrs 3% rising in steps to 15+ yrs 50%; a $25,000 supplemental floor
What West Virginia actually sets out
| What the statute sets out | What it says |
|---|---|
| W. Va. Code Sec. 42-3-1 | “The surviving spouse of a decedent who dies domiciled in this state has a right of election, against either the will or the intestate share, under the limitations and conditions stated in this part, to take the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule… 1 year but less than 2 years 3% of the augmented estate.” |
| The share and what it is measured against | under 1 yr supplemental amount only, 1-2 yrs 3% rising in steps to 15+ yrs 50%; a $25,000 supplemental floor; measured against augmented estate. |
| Regime type | marriage-length sliding-scale percentage |
| Can it be waived | per secondary aggregation: waivable wholly or partially, before or after marriage, by written contract |
| Time limit to file | per secondary aggregation: within 9 months after the decedent’s death, or 6 months after probate of the will, whichever is later |
How it works in practice
- The share is measured against augmented estate.
- No. This state’s formula is deliberately built to reach revocable trusts, payable-on-death accounts and other lifetime transfers, precisely so the elective share cannot be defeated by moving assets out of probate before death.
- Waiver: Per secondary aggregation: waivable wholly or partially, before or after marriage, by written contract.
- The election has to be affirmatively filed on a deadline: per secondary aggregation: within 9 months after the decedent’s death, or 6 months after probate of the will, whichever is later.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for West Virginia specifically, and its own numbers above should be used instead of the calculator’s national default for a West Virginia estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- This session confirmed the core figure above against a primary or verbatim-mirror source, with one open point: Waiver rule and specific time-limit section number sourced via search aggregation, not a direct fetch of that subsection.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in West Virginia is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 5, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
The sources above were retrieved and read against the state text on September 5, 2026. Every quotation on this page was checked against those bytes.