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

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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

Answers:

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

Answered 10 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.


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