Twenty Years Together, Still Strangers in the Eyes of Virginia Law

Mike and Alisha met in their mid-forties at a Northern Virginia neighborhood block party. Within a year they were inseparable. They shared a home in Fairfax County, split bills, took vacations together, and built the kind of easy domestic partnership that everyone around them recognized as a real marriage in all but name.

They never married. It was a deliberate choice. Each had been through a divorce and had adult children they wanted to protect financially. After twenty years together, the legal formalities felt beside the point. “We know what we want for each other,” Mike once told his sister. “We don’t need paperwork to prove it.”

He was wrong. When Mike died suddenly at 66 from a heart attack, the consequences proved devastating for Alisha.

What they had built together

By the time Mike died, he and Alisha had accumulated a meaningful estate across two decades of shared life. They owned two properties: the Fairfax County home they had shared for fifteen years, titled solely in Mike’s name, and a Shenandoah Valley cottage he had purchased before they met. Mike also held a substantial brokerage account and a rollover IRA from his career in government contracting. Alisha had her own 401(k) and modest savings.

Mike had no will. He had been meaning to create one for years, always assuming Alisha would be taken care of and that his children would do right by her. The law had different plans.

What Virginia law said instead

Because Mike and Alisha were not married and Mike left no will, his estate passed under Virginia’s intestate succession statutes, specifically Va. Code § 64.2-200. The rule is unambiguous: an unmarried partner inherits nothing in the absence of a will, regardless of the length or depth of the relationship. Mike’s assets passed entirely to his legal heirs, his two adult children from his first marriage.

“An unmarried partner inherits nothing under Virginia law, no matter how long the relationship. The Commonwealth does not recognize love. It recognizes documents.”

The practical fallout was immediate and severe. Mike’s children were not cruel, but they were legally in the right. Within weeks of probate opening, Alisha received notice that the Fairfax home was an asset of Mike’s estate. She had no legal right to remain in the house where she had lived for fifteen years.

The brokerage account, lacking a payable-on-death designation, flowed into probate as well. Virginia’s probate process is administered through the circuit courts, and settling the estate took over a year and consumed a significant portion of the account in legal and administrative fees. Alisha received nothing from it.

The IRA was the one asset that passed cleanly. It went directly to Mike’s eldest son as named beneficiary, bypassing probate entirely. Alisha had always understood that account to be part of their shared retirement future.

The protection Alisha never had: Virginia’s elective share

What made Alisha’s situation especially hard was discovering what she would have been legally entitled to if she and Mike had simply been married.

Virginia law gives every surviving spouse a powerful backstop known as the elective share. Under Va. Code § 64.2-308.3, a surviving spouse has the right to claim up to 50% of the marital-property portion of the decedent’s augmented estate. That figure includes not just probate assets but also non-probate transfers, retirement accounts, and jointly held property. The share is scaled to the length of the marriage, and for relationships of 15 years or more, the full 50% is available.

The elective share exists precisely to prevent a surviving spouse from being disinherited, even if the deceased left a will cutting them out entirely or died without one at all. It is one of the most significant financial protections Virginia law extends to married couples.

Virginia’s elective share statute applies only to legal spouses. Alisha had no claim to any portion of Mike’s estate under any theory of law.

Alisha’s attorney explained the situation gently. The elective share had never been available to her. Twenty years of shared life, shared meals, and shared mortgage payments counted for nothing under the statute. A marriage certificate would have unlocked that protection. They had never gotten one.

Where the plan broke down

No will or trust. No TOD or beneficiary designations on the brokerage account. No joint tenancy with right of survivorship on either property. No cohabitation agreement. No durable power of attorney or healthcare directive naming Alisha. And no access to the elective share protections Virginia reserves exclusively for legal spouses. Under Virginia law, every one of these gaps worked against her.

What a proper Virginia plan might have looked like

Mike and Alisha’s situation was entirely preventable. For unmarried couples in Virginia, effective estate planning takes more deliberate effort than it does for married couples. The automatic legal protections that come with marriage, including the elective share, simply do not exist here. Any of the following steps would have changed the outcome:

• A will or revocable living trust. A will would have allowed Mike to direct any portion of his estate to Alisha directly, including the right to remain in the home. A revocable living trust would have gone further, allowing assets to pass outside of probate entirely and avoiding the cost and delay of Virginia’s circuit court probate process.
• Beneficiary and TOD designations on all accounts. Accounts with transfer-on-death designations bypass probate entirely and pass directly to whoever is named, with no interference from Virginia’s intestacy rules. Mike’s brokerage account had no such designation, which is why it ended up in court.
• Joint tenancy with right of survivorship on real property. Virginia allows unmarried co-owners to hold real property as joint tenants with right of survivorship. Had the Fairfax home been titled this way, Alisha would have automatically inherited Mike’s share upon his death. Note that Virginia’s default for unmarried co-owners is tenants in common; joint tenancy must be expressly stated in the deed.
• A cohabitation agreement. Virginia does not recognize common-law marriage. A cohabitation agreement is a private contract that spells out property rights, financial expectations, rights of occupancy, and what happens to shared assets upon death or separation. It is an imperfect but meaningful substitute for the elective share protections that unmarried couples cannot access by law.
• Advance healthcare directives and durable powers of attorney. Without these documents, Virginia law assigns medical and financial decision-making authority to next of kin. Had Mike survived in an incapacitated state, his adult children, not Alisha, would have had legal control over his care.

The lesson

Mike and Alisha were in their prime working years when they met. They were not elderly, not slowing down, not thinking about estate planning. At 66, Mike’s death caught everyone off guard. A plan built during the good years would have held. Waiting for the right moment meant there was no plan at all.

Virginia law is precise and unforgiving on this point. The elective share, the intestacy protections, the homestead allowance: these are benefits the Commonwealth extends to spouses. Unmarried partners receive none of them by default. Twenty years of devotion does not change that.

If you are in a long-term partnership outside of marriage in Virginia, do not wait. The documents that protect your partner and reflect your wishes have to exist before they are needed. By definition, that means now.

Our estate planning attorneys work with unmarried couples, blended families, and domestic partners to build plans that reflect your actual wishes, not the Commonwealth’s default assumptions. Contact us to schedule a consultation.