Legal Question in Real Estate Law in Virginia

Re: Widower rights to property

Your deceased father's surviving children from a prior marriage will need to file what's called an affidavit of heirship with the clerk of the probate division of the local circuit court in the city or county where the property is located in order to establish their claim of ownership interest in their father's home who apparently died intestate(without a will).

These children will likely be collectively entitled

to a two thirds ownership interest in this home and your father's surviving spouse one third as outlined in Va. Code Sec. 64.1-1.

Re: Widower rights to property

You need to read the deed carefully and probably get an attorney to look at it. If the deed is written as having "rights of survivorship" or anything similar, then the ownership of the house would immediately be transferred to the surviving spouse upon teh death of one. That happens outside of any will or probate. It is automatic.

Also look for "tenants by the entireties."

So you need to start there and see what the deed says.

If that does not answer the question, then the children from the previous marriage probably will be entitled to a share of the sales proceeds.

First notice however that 1/2 of the house bleongs to your mother. So they get NOTHING of HER HALF. It belongs to her, she is still alive and nothing changes.

So we are only talking about the 1/2 of the house that your father owned (again assuming the deed does NOT have "rights of survivorship" in it).

From that 1/2, I believe your mother would get 1/3 (1/3rd of that 1/2) and the children would divide the other 2/3rds (of the 1/2).

That would mean that your mother would get 1/2 + 1/6th or 2/3rds of the sales proceeds of the house.

SO the 4 children from the preceeding marriage would divide among them 1/3rd of the sales proceeds of the house. (2/3rds of your father's one half).

I always get the 1/3rd and 2/3rds confused. I don't do this detail often. So I would have to double check who gets the 1/3rd before you make any final decision.

So I could be mixing up who gets the 1/3rd and who gets the 2/3rds, but I believe that is correct.

But first study the deed. You have to explore that first.