West Virginia law, for title research

Is West Virginia a community property state? No: the code says equitable distribution creates none, with equal division and a spouse notice rule

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

How does West Virginia classify a married couple's property?

Not as community property. W. Va. Code section 48-7-108 says neither the article nor the doctrine of equitable distribution of marital property may be construed to create community property, or any other interest or estate in property except those previously recognized in the state. IRS Publication 555 does not list West Virginia among its nine community property states.

During the marriage, section 48-29-103 lets married women own property in their own right and manage, sell or convey it to the same extent and in the same manner as a married man. Section 48-1-233 defines the term marital property. It says the definition has no application outside the provisions of its article, and that the common law on spouses' ownership, as altered by article twenty-nine and other provisions, is not abrogated by implication or otherwise, except as the article expressly provides.

We searched the articles we fetched for the phrase community property: chapter 48 articles 1, 1A, 3, 4, 5, 7 and 29, chapter 36 articles 1, 3 and 12, and articles 38-9, 40-1, 41-1, 42-1, 42-3 and 43-1. There were two hits, section 48-7-108 and a definition in section 42-1-1, which treats community property with the right of survivorship as a form of coownership. We did not search the rest of the code.

How is property divided in a West Virginia divorce?

Equally, unless altered. Section 48-7-101 has the court divide the marital property equally on every judgment of annulment, divorce or separation, except as that section provides. Section 48-7-102 follows a separation agreement, unless the court finds fraud, duress or other unconscionable conduct, terms that would not be enforceable in an order, or an agreement so inequitable that it defeats the section's purposes and that was inequitable when executed. Without a valid agreement, section 48-7-103 presumes equal division and allows the court to alter it, without regard to fault, after considering monetary contributions, nonmonetary contributions, efforts affecting income-earning ability, and conduct dissipating or depreciating marital property.

Marital property under section 48-1-233 is all property and earnings acquired by either spouse during a marriage, regardless of the form of ownership. Separate property under section 48-1-237 includes property acquired before marriage or in exchange for it, property excluded by a valid agreement, property acquired by gift, bequest, devise, descent or distribution, and property acquired after separation and before an order. Growth in separate property from inflation or market conditions outside the parties' control stays separate. Growth from marital funds or from work by either or both parties during the marriage is marital.

Titling does not settle it. Section 48-29-202 presumes a gift when one spouse pays and takes title in the other's name, but in an article seven action the presumption does not apply, and a gift between spouses must be affirmatively proved.

The court designates the property, and section 48-7-104 values it as of the date of separation or a later date it finds more appropriate. It may direct a transfer, permit a purchase, direct a money payment, direct an exchange of equal value, or order a sale and division of net proceeds. In one situation, section 48-7-104(2) lets it adjust the interest of a party who would otherwise get less than half, up to an interest not exceeding one half. Section 48-7-105 prefers periodic or lump sum payments to transfers of legal title, though it allows transfers of motor vehicles, household goods and the former marital domicile when necessary or convenient, and it prefers retention of inherited or gifted interests unless the parties agree otherwise. The court must give detailed findings under section 48-7-106. If an order requires a transfer of title and a party fails or refuses to execute a deed, a special commissioner appointed by the court executes it under section 48-7-107.

Can a West Virginia spouse sell land during a divorce?

Section 48-7-108 says that, as to any third party, equitable distribution and the article create no interest or title until an order judicially defines the interest or approves a separation agreement defining it. A husband or wife may alienate property at any time before an order or the recording of a lis pendens notice, and at any time and in any manner an order does not prohibit, as if the article had not been adopted.

There are limits. A transfer before an order, other than to a bona fide purchaser for value, is voidable if the court finds it was made to avoid the article or is otherwise a fraudulent conveyance. Section 48-7-304 lets the court set aside an encumbrance or disposition to third persons, except to bona fide purchasers without notice for full and adequate consideration. Section 48-7-301 allows an injunction, and attachment, when a party is about to dispose of or encumber property to defeat a fair distribution or support.

For the record, section 48-7-401 lets a party claiming an interest in real property in which the other party has an interest record a lis pendens with the clerk of the county commission. Under section 48-7-402, it is notice from recording only, and a person later acquiring an interest is bound by later proceedings as if a party. The court may discharge it on a bond if it finds the claim can be satisfied by a monetary award, and on application, notice and hearing may substitute a lien on the net proceeds when a sale is already in process.

W. Va. Code section 48-7-108 also says that on entry of an order, or recording of a notice, restraining alienation, a bona fide purchaser for value takes such title or interest as that purchaser might have taken before the section took effect. No order is construed to defeat a third party transferee's title, except to the extent the power to make that transfer is secured by a valid and duly perfected lien and, for personal property, a duly perfected security interest. No purchaser for value need see to the application of the proceeds, except as that purchaser would have had to before the section took effect. As to third parties, the section does not limit or defeat the interests or rights a husband or wife would have had before it was enacted or before equitable distribution was adopted in 1983.

Does a spouse have to sign a West Virginia deed?

Section 43-1-2 requires notice, not a signature. Section 43-1-1 abolishes dower and curtesy. Section 43-1-2 then says a married person conveying an interest in real estate must notify the spouse before or within thirty days of the conveyance, if dower would have attached to that interest had the conveyance been made before the statute's enactment. A conveyance means a dispositive act intended to create a property interest in land, and it includes creating a security interest in real estate. The rest of article 43-1 on dower is repealed, and section 43-1-2 does not itself say which interests dower would have reached, so that test sits in older law outside this page.

The person conveying has the burden of proving compliance, either by the spouse's signature on the instrument or by other competent evidence admissible in court. So the signature is one way of proving notice. The section addresses the person conveying an interest, and it does not address a spouse who also holds title, whose own interest is a separate question. The consequence of no notice falls in a later divorce: if one occurs within five years of the conveyance, the value of the real estate at that time is deemed part of the conveyancer's marital property for equitable distribution or support. Subsection (e) says the section does not create a lien or claim against the interest conveyed.

The homestead article is a separate subject. Section 38-9-1 gives any husband, wife, parent or other head of a household owning a homestead an exemption to the value of $5,000, subject to section forty-eight of article six of the state constitution, which we did not read for this page. The six sections of that article do not say a spouse must sign a deed. Section 38-9-3 excepts purchase money, permanent improvements and taxes and levies due on the homestead, and it adds up to $7,500 for some debts from catastrophic illness or injury. Section 38-9-5 passes the benefit to minor children at the owner's death.

What does a deed to spouses create in West Virginia?

Read the instrument. Section 36-1-19 says that when a joint tenant or tenant by the entireties dies, the share descends or is disposed of as if held by a tenant in common. Section 36-1-20 preserves survivorship for an estate conveyed or devised to persons in their own right when it manifestly appears from the tenor of the instrument that the part of the one dying should belong to the others. Owners linked by the disjunctive or are joint tenants with the right of survivorship, unless expressly stated otherwise. These sections state no separate survivorship rule for spouses, and section 36-1-19 names a tenant by the entireties alongside a joint tenant.

Older and unusual deeds have their own rules. Section 36-12-15(b) says a survivorship clause in a deed recorded before the effective date of the transfer on death article, which fails to create a survivorship tenancy but otherwise is an effective deed and shows a clear intent to designate a beneficiary, is liberally construed to be an effective transfer on death deed. Section 36-12-13(c) says that a transfer on death deed by a joint owner with survivorship gives way to surviving joint owners. Section 36-1-20(c) and (d) bar people convicted of listed offenses against a joint holder of title from taking by survivorship, with an exception in subsection (d).

A straw party is not needed. Section 36-1-20a says a conveyance creating a joint tenancy with right of survivorship together with the person conveying is valid to the same extent as one from a third party or by a straw party deed. Section 48-29-201 puts the burden of proof on the receiving spouse in a proceeding questioning a spouse-to-spouse transfer, when it is brought by the spouse making it or that spouse's heir, devisee or creditor. Section 48-1-233 treats joint tenancy and similar coownership as a form that can hold marital property.

What does a surviving spouse take at death?

Without a will, section 42-1-3 sets the share. It is the entire intestate estate if no descendant survives, or if all surviving descendants are also the spouse's and the spouse has no other surviving descendant. It is three fifths if all are also the spouse's and the spouse has others. It is one half if any surviving descendant is not the spouse's.

A surviving spouse of a decedent domiciled in the state may instead elect a share of the augmented estate under section 42-3-1, against either the will or the intestate share. The percentage rises with the length of the marriage, from a supplemental amount only under one year, to 3% at one year, to 30% at ten years, and to 50% at fifteen years or more. A supplemental amount brings the listed sums up to $25,000. For a decedent domiciled elsewhere, the law of that domicile governs an elective share in West Virginia property.

The augmented estate looks beyond the probate estate. Section 42-3-2 can reach property transferred during the marriage to someone other than a bona fide purchaser, if the decedent kept possession or income or a listed power, or if the transfer went to a donee within two years before death and exceeded $10,000 to that donee in either year. It defines a bona fide purchaser as one for value in good faith and without notice of an adverse claim, and treats a state documentary fee noted on a recorded instrument as prima facie evidence of one. It can also reach property the decedent held with someone other than the spouse with right of survivorship, acquired during the marriage, to the extent of the decedent's contribution. A transfer is excluded to the extent of adequate and full consideration, or if irrevocably made with the surviving spouse's written consent or joinder. Under section 42-3-6(d), only original recipients and their donees who still have the property or proceeds must contribute, and they may give up the property or pay its value.

Section 42-3-4 calls for the petition within nine months after death or six months after probate of the will, whichever expires later, with a rule for extensions. The reclaimable estate is not included in the augmented estate for computing the share if the petition comes more than nine months after death, unless an extension applies. Section 42-3-3a allows a signed waiver, before or after marriage, unless the spouse proves it was involuntary, or that it was unconscionable when executed and, before that, the spouse had no fair disclosure, did not voluntarily waive further disclosure in writing, and had no adequate knowledge. A waiver of all rights, or a complete property settlement after or in anticipation of separation or divorce, also renounces intestate and earlier will benefits, unless it provides otherwise. Section 41-1-6 revokes dispositions by will to a former spouse on divorce or annulment, unless the will expressly provides otherwise, and a separation decree that does not end the status of husband and wife is not a divorce for that section. Section 42-3-7 gives a spouse who married the testator after the will an intestate share of the portion not devised to the testator's children from before the marriage or their descendants, with listed exceptions.

What a title search checks on a married West Virginia owner

Start with the record. Section 40-1-9 makes a deed void as to creditors and subsequent purchasers for valuable consideration without notice, until it is admitted to record in the county where the land lies. Section 40-1-10 requires recording in each county with land covered, and section 40-1-15 says a purchaser is not affected by a record outside the chain of title as that section describes it. Section 40-1-8 treats a recorded written contract about real estate in consideration of marriage, as against creditors and purchasers, as valid as a deed. For each conveyance, note marital status on that date and whether the spouse signed, since a signature is one way to prove notice under section 43-1-2. Section 43-1-2(e) says the section creates no lien or claim against the interest conveyed, though a failure to give notice can matter in a divorce within five years.

Then look in the county clerk's records for a lis pendens or a notice restraining alienation, a special commissioner's deed from a divorce, and a recorded premarital or separation agreement if one exists. The code speaks separately, in section 48-7-108, of the entry of an order and the admission to record of a notice, so our reading is that a clean clerk search does not by itself exclude an entered order. Section 48-1A-201 requires a premarital agreement to be written, signed by both and to acknowledge an opportunity to consult separate counsel. Read the instrument for survivorship language or the word or between owners. Where an owner has died, check for an elective share proceeding, and for a recent gift out of the estate. Whether a transfer can be undone is a legal question for a West Virginia attorney, and the report shows the record it turns on.

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

Sources: IRS Publication 555, Community Property; WV Code 48-7-108; WV Code 48-7-103; WV Code 48-7-102; WV Code 48-1-233; WV Code 48-1-237; WV Code 48-7-104; WV Code 48-7-105; WV Code 48-7-107; WV Code 48-5-609; WV Code 48-7-301; WV Code 48-7-304; WV Code 48-7-401; WV Code 48-7-402; WV Code 43-1-1; WV Code 43-1-2; WV Code 48-29-103; WV Code 48-29-202; WV Code 48-29-201; WV Code 48-1A-201; WV Code 36-1-19; WV Code 36-1-20; WV Code 36-12-15; WV Code 36-1-20A; WV Code 40-1-9; WV Code 40-1-8; WV Code 40-1-15; WV Code 38-9-1; WV Code 38-9-3; WV Code 38-9-5; WV Code 42-1-3; WV Code 42-3-1; WV Code 42-3-2; WV Code 42-3-4; WV Code 42-3-3a; WV Code 41-1-6. Each row links the section it summarizes.

Questions people ask

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