Probate Family Allowance Requirements in West Virginia

At a glance

Requirements one by one

What happens without a family allowance

The complete current West Virginia decedent-succession and estate- administration titles—Chapters 42 and 44—contain no general cash allowance for the maintenance of a surviving spouse or dependent during probate. W. Va. Code § 44-2-21 instead supplies the ordinary insolvent-estate payment order: administration costs, funeral expenses, preferred federal debts and taxes, unpaid child support, preferred state debts and taxes, last-illness expenses, and then all other claims. There is no family-allowance priority in that list.

West Virginia does have two separate creditor-exemption protections. W. Va. Code § 38-8-10 lets a surviving spouse or minor children select up to $1,000 of the decedent's personal estate and hold it exempt from the decedent's debts. The personal representative or a creditor may request appraisal under that article.

W. Va. Code § 38-9-1 separately creates a $5,000 homestead exemption by operation of law for a qualifying resident household head or the infant children of a deceased or insane parent who owned a homestead. Section 38-9-5 continues a deceased owner's homestead benefit for minor children until all reach 21 unless they die sooner. Purchase-money debt, permanent-improvement debt, taxes, levies, and the other § 38-9-3 limits remain outside the exemption.

Those exemptions are not temporary maintenance awards. They protect specified property or value from creditors and do not create a court-set monthly or lump-sum support payment. The surviving spouse's elective share under W. Va. Code § 42-3-1 is another separate inheritance right, also outside this survey's temporary-support question.

What trips people up

• A creditor exemption is not a family allowance. The $1,000 and $5,000 protections shield property or value; they do not pay temporary maintenance.
• The homestead amount is subject to named exceptions. Purchase money, permanent improvements, taxes, and local levies are not displaced by the ordinary $5,000 exemption.
• The elective share answers a different question. It determines a spouse's inheritance claim against the augmented estate, not support during administration.

Common questions

Can a creditor force appraisal of the selected personal property?

Yes. Section 38-8-10 allows the personal representative or any creditor of the decedent to have the selected property appraised under the preceding sections of Article 38-8.

Can a surviving spouse waive the homestead exemption in advance?

W. Va. Code § 38-9-6 generally makes a waiver void and unenforceable. Its narrow exception requires a consensual security interest in the property and inability to satisfy that security interest without reaching the asserted exemption.

Do minor children keep the homestead benefit permanently?

No. Under § 38-9-5, the benefit continues until all of the minor children reach 21 unless they die sooner.

Statutes and sources

• W. Va. Code Chapter 42 — complete current decedent-succession title, including exempt-property definition and elective share but no family allowance (accessed August 3, 2026).
• W. Va. Code Chapter 44 — complete current estate-administration title, with no family allowance (accessed August 3, 2026).
• W. Va. Code § 38-8-10 — $1,000 post-death personal-property exemption and appraisal route (accessed August 3, 2026).
• W. Va. Code §§ 38-9-1 to 38-9-6 — homestead amount, exceptions, child duration, and waiver (accessed August 3, 2026).
• W. Va. Code § 44-2-21 — insolvent-estate payment order (accessed August 3, 2026).