Can my stepchildren take items from our home becausethey supposedly belong to their father?

UPDATED: Jan 3, 2011

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Can my stepchildren take items from our home becausethey supposedly belong to their father?

My husband and I married 5 years ago, and his adult offspring are already asking what to take with them the day he dies. We just bought a home in VA, and I’m investing a lot of money buying things for this home. What are my rights? They seem to have a plan to just take what they want. He made a Will but left me out of it. I’m truly scared that my rights will be violated.

Asked on January 3, 2011 under Estate Planning, Virginia


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

The fact is that one spouse cannot disinherit the other spouse completely (unless the surviving spouse has waived their right to be included in the other's estate, in either a pre-nuptial or post-nuptial agreement).  Each state has laws that shield a surviving spouse from being completely cut off.  It is deemed against public policy to allow a surviving spouse to become destitute due to being disinherited by the decedent spouse.  Accordingly, the surviving spouse can choose between the property left in the deceased spouse’s Will or a statutory share set by state law.  This is generally known as the the right of  "spousal election".  In VA, the percentage the spouse receives is as follows: if the decedent is survived by children or descendants, the surviving spouse is entitled to 1/3 of the estate; if the decedent is not survived by children or descendants, the surviving spouse is entitled to 1/2 of the estate.  However, the surviving spouse must file typically for this election within 6 months from the date of probate of the Will.

Note:  As to any of your personal property, this is not property of the estate so his children have no rights to it whatsoever.

At this point, you should consult directly with an estate planning or probate attorney.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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