Answer

Thank you for your question.

 

The intestacy laws of Virginia are rather harsh (like many other states). Assuming at least one of these children are not also your children, then they would be entitled to 2/3 of the estate under the law in Virginia. This is pursuant to Title 64.1 Wills and Distribution, of the Virginia Code. It provides in part:

 

64.1-1. Course of descents generally.
When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to such of his kindred, male and female, in the following course:

First. To the surviving spouse of the intestate, unless the intestate is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case two-thirds of such estate shall pass to all the intestate's children and their descendants and the remaining one-third of such estate shall pass to the intestate's surviving spouse.

 

However, often the marital residence is titled in such fashion that it will pass automatically to the surviving spouse. If the title to the marital residence, as expressed in the deed, is "joint with right of survivorship" with the surviving spouse or "tenants by the entirety," then the surviving spouse automatically becomes the sole owner, subject to any mortgage or other liens on the house. If the spouse's rights in the marital residence cannot immediately be determined, then the spouse is entitled to reside in the marital residence for a period of time, without any charge for rent, until the spouse's rights can be determined. A surviving spouse will still have this right to reside in the marital residence if the decedent died intestate and is survived by one or more children or other descendants from a prior marriage.

 

The laws of intestacy and the distribution of assets are complex; I would encourage you to seek the advice of a local estate planning/probate lawyer in your area to discuss the matter further.

 

Good luck to you. If you have any additional questions, please press the reply button, and I will be happy to assist you further.

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