Q: If a parent had a child, outside of marriage, is that child due an inheritance if that parent dies in VA?

A: This is a somewhat complicated issue which should be discussed with an experienced Virginia probate lawyer with the benefit of an illustration of the family tree. Generally, a child or descendant of a child, born out of wedlock, has the essentially the same rights as an heir as the other children or descendants of the decedent through marriage, except when the line of intestate succession proceeds to collaterals or siblings of a decedent. Under Virginia Code Section 64.2-202, collaterals of the half blood may take half the amount if they do not share the same common ancestor, in determining whether the portion of the state passes per stirpes or pro rata.

Another potential issue with a child born out of wedlock is a surviving spouse. If there is a surviving spouse, and there are children of the decedent who are not children of the surviving spouse, whether born out of wedlock or as a result of a prior marriage, then the intestate estate is divided 2/3rds to the children and 1/3rd to the surviving spouse.

A: To correct my previous answer, I meant to write "per stirpes" or "per capita". I also want to clarify that collaterals can include aunts and uncles or anyone not in the direct line of intestate succession up or down. Thus, if a decedent dies intestate, without a surviving spouse, descendants, or siblings, the analysis proceeds from the parents or grandparent lines in halves. The estate will be divided into moities, or shares for the paternal and maternal sides, then descend in the order prescribed by Virginia intestate succession statutes.