Virginia law, for title research

Is Virginia a community property state? No: how Virginia classifies and divides property, and what it means for a deed

Every rule below is quoted from the Code of Virginia or another official source, linked and checked on the date shown. General information, not legal advice.

How does Virginia classify a married couple's property?

In three categories, and only when a divorce asks it to. Section 20-107.3 of the Code of Virginia tells the court, at the request of either party, to determine legal title as between the spouses and to classify their property as separate, marital, or part separate and part marital.

Separate property is what either spouse acquired before the marriage; what a spouse acquired during it by bequest, devise, descent, survivorship or gift from someone other than the other spouse; and property acquired in exchange for separate property, if it is kept separate. Income from separate property stays separate if not attributable to either party's personal effort, and the section has its own rule for increases in value. Marital property is everything titled in both names, whether as joint tenants, tenants by the entirety or otherwise, except as the rules on part separate and part marital property provide, the marital part of property that is partly each, and all other property either spouse acquired during the marriage that is not separate. Property acquired during the marriage and before the last separation, if at such time or afterward at least one party intends the separation to be permanent, is presumed marital, absent satisfactory evidence that it is separate. Marital property is presumed jointly owned unless a deed, title or other clear indicia shows otherwise.

Commingling can change a classification. Subdivision (A)(3) says contributed property that loses its identity is transmuted to the category receiving it, unless it is retraceable by a preponderance of the evidence and was not a gift. Subsection (I) preserves agreements under sections 20-109 and 20-109.1, and section 20-155 addresses agreements between spouses.

Can a Virginia divorce court transfer a house titled in one spouse's name?

Generally not. Section 20-107.3(C) says that, except as subsection G provides, the court has no authority to order the division or transfer of separate property or marital property that is not jointly owned. It may divide or transfer jointly owned marital property, and it may order a spouse's separate property returned from the other spouse's possession or control.

Money is the other tool. Subsection B says the parties' interests in marital property do not attach to legal title and are only a consideration in determining a monetary award. Under subsections D and E, the court may grant a monetary award based on the equities and each party's rights and interests in the marital property, after weighing factors that include each party's monetary and nonmonetary contributions to the family and to the property, the duration of the marriage, and the parties' ages and condition.

That award can still touch land. Subsection D makes it a judgment that is not docketed by the clerk unless the decree so directs, and it may be satisfied in whole or part by conveyance of property, with the court's approval. Section 8.01-458 makes a docketed money judgment a lien on the defendant's real estate. So a search looks at the judgment lien docket as well as the land records.

Where does a Virginia divorce show up in the land records?

Sometimes in the grantor and grantee indexes. Section 20-107.3(C) requires an order or decree that divides or transfers real property between the parties to be recorded and indexed in the names of both parties in the land records of the circuit court clerk for the county or city where the property is located. A title search therefore looks for such an order under each spouse's name, not just for a later deed.

Section 20-111 changes title at the moment of divorce. On entry of a decree of divorce from the bond of matrimony, every contingent right of either spouse in the other's property is extinguished, including survivorship in property held as joint tenants or as tenants by the entirety, and an estate by the entirety is converted into a tenancy in common. That section operates on entry of the decree and does not mention recording, so survivorship can end with nothing in the land records. A divorce that appears only in the court file is a reason to search there too. Section 8.01-268 says a lis pendens does not bind a later bona fide purchaser for value without actual notice until a memorandum with the listed details is recorded.

How do married couples hold title in Virginia?

Three forms are named, with a default. Section 55.1-135 says property conveyed or devised to spouses is held by moieties, as if a distinct moiety were given to each by separate conveyance, unless language designates a joint tenancy or a tenancy by the entirety. Section 55.1-136 lets spouses own real or personal property as tenants by the entirety for as long as they are married, and a designation as tenants by the entirety shows the intent that the share of the spouse who dies belongs to the other. Except as a statute provides, no interest held this way is severed by a written instrument unless it is a deed signed by both spouses as grantors. Subsection (C) addresses immunity from creditors for entirety property conveyed to the spouses' trusts.

Joint tenancy works differently. Section 55.1-134 abolishes survivorship between joint tenants unless the instrument manifestly shows it was intended, and Section 55.1-135 says property titled to two or more persons jointly, without more, is a joint tenancy without survivorship; adding with survivorship or equivalent words raises a presumption of survivorship. The vesting words on a Virginia deed are the starting point for who owns the property after a death.

What happens to a Virginia spouse's real estate at death?

Without a will, Section 64.2-200 sends the real estate to the surviving spouse, unless the decedent leaves children or descendants one or more of whom are not also the surviving spouse's. In that case two-thirds passes to the decedent's children and their descendants and one-third to the surviving spouse.

A will does not end the analysis. Section 64.2-308.3 gives the surviving spouse of a decedent who dies domiciled in Virginia a right to elect 50 percent of the value of the marital-property portion of the augmented estate, and Section 64.2-308.4 builds that estate from the probate estate, non-probate transfers to others and to the spouse, and the spouse's own property. Subsection (B) applies a percentage set by the length of the marriage, from 3 percent under one year up the statute's schedule.

That article applies to deaths on or after January 1, 2017, under Section 64.2-308.1, so an earlier death falls under the prior sections. Section 64.2-308.12 requires a writing recorded in the court or its clerk's office no later than six months after the later of the will's admission to probate or an administrator's qualification, and the court then orders payment of an amount. Section 64.2-308.14 allows waiver before or after marriage by a signed writing, and bars a spouse who willfully deserts or abandons the other until death, as it states. Section 64.2-308.16 lets the survivor occupy the principal family residence in listed cases until those rights are settled.

Dower is gone but not forgotten. Sections 64.2-301 and 64.2-308.2 abolish dower and curtesy, while interests vested before January 1, 1991, and third-party rights in real estate subject to them, stay under prior law. Section 64.2-412 says a divorce revokes dispositions to the former spouse in a will made earlier, and Section 64.2-632 sets the effect of a transfer on death deed at death, subject to the elective share. For a title search on inherited Virginia land, that means reading the will, the probate records and any elective share writing together.

What about community property brought from another state?

Virginia adopted the Uniform Disposition of Community Property Rights at Death Act. Under Section 64.2-315 it applies at death to all or the proportionate part of Virginia real property acquired with, or traceable to, property that was community property under the laws of another jurisdiction. Section 64.2-317 says one-half of property the article covers is the surviving spouse's and is not subject to the decedent's will or intestacy, and the decedent's half is not subject to the elective share. Section 64.2-316 sets rebuttable presumptions on whether the article applies.

The article also deals with title. Section 64.2-318 lets the survivor's title be perfected by court order or an instrument from the personal representative or heirs or devisees, approved by the commissioner of accounts. Section 64.2-320 says a purchaser for value or lender taking a security interest from someone with apparent title takes free of the other side's rights.

What a title search checks on a married Virginia owner

A title check before buying reads the vesting words on each deed: tenants by the entirety, joint tenants with survivorship, or joint tenants without it. It checks whether an entireties estate was severed by a deed both spouses signed, searches the grantor and grantee indexes for a divorce order under each spouse's name, looks at the judgment lien docket and for any lis pendens memorandum, and, after a death, reads any will and elective share writing it finds of record. Whether a spouse or former spouse holds an interest is a legal conclusion for a Virginia attorney; the report shows the record that question turns on.

The Virginia marital property rules on this page, with their sources

Sources: IRS Publication 555, Community Property; Code of Virginia, section 20-107.3; Code of Virginia, section 55.1-136; Code of Virginia, section 20-111; Code of Virginia, section 55.1-135; Code of Virginia, section 64.2-200; Code of Virginia, section 64.2-308.3; Code of Virginia, section 64.2-308.4; Code of Virginia, section 64.2-315; Code of Virginia, section 64.2-317; Code of Virginia, section 64.2-320; Code of Virginia, section 64.2-318; Code of Virginia, section 64.2-308.1; Code of Virginia, section 64.2-308.12; Code of Virginia, section 64.2-308.14; Code of Virginia, section 64.2-308.16; Code of Virginia, section 64.2-308.2; Code of Virginia, section 8.01-268; Code of Virginia, section 64.2-412. Each row links the section it summarizes.

Questions people ask

More on how Virginia property law shapes a title search: title research in Virginia.