Legal Question in Wills and Trusts in Virginia

Re: Father remarried after mothers death

I disagree with Randy. The laws of Va must be checked. As in NJ, if there is no premarital or post-marital agreement, the new wife may acquire certain rights by virtue of the marriage, that supercede the Will. For example, if she resides in your father's house, as their marital home, she automatically may get a life estate and, if so, can continue to reside there after his demise. Questions will arise as to whether or not she needs to contribute to the costs of residing there, such as real estate taxes, insurance, repairs, etc. These matters should be covered by a written agreement, if VA law gives her this right, as most state laws do not specify what items are paid by the resident and what by the estate. Unless specified in writing, you might anticipate that she will claim that furniture and furnishings were provided by her, not your father, and try to get these items also. In addition, while most premarital assets are protected, a surviving spouse may have a claim to a portion of the decedent's estate, by statute. This right, as to the extent and how calculated, should also be checked. Randy is correct that if a joint account is created between your father and his wife, for bank accounts, brokerage accounts, etc., she would probably get them by survivorship registration. I strongly suggest you get your father to a good estate attorney to review these matters and prepare a new Will to cover them and also to protect you. It is unfortunate that in many cases, the new spouse gets more than he/she might be entitled to, due to improper planning, and the children of the decedent lose out, not necessarily by choice, but by poor planning, or doing nothing.

Re: Father remarried after mothers death

If your father does not revoke his current will then his current wife will not receive anything unless she is a joint-tenant on any of his property. For example, if he puts his wife as a co-owner (joint tenant) on his bank account and/or a deed (among other assets) then she would receive that particular asset outright when he dies. Simply stated, property held in joint tenancy trumps bequests made in a will.

But if your father does not add his new wife to his real property or to his other assets, then your sister and you would receive his assets in equal shares upon his death.

(If a person dies without a will and has children from a prior marriage then his current spouse is entitled by law to receive a certain percentage of the estate, but that's not the case here.)