Legal Question in Wills and Trusts in Virginia
Does surving spouse over rule some ones will?
My aunt and uncle made up their wills over 10 year ago when they lived in NJ. They now live in VA. My uncle has a daughter from his first wife. But has been married to my aunt for 45 year now. And both their names are on everything they own. (house,bank acct ect). His will reads that all goes to his wife unless she dies first or if she dies 30 day after him it then goes to his daughter and granddaughter equal.
His daughter lately keeps tell my aunt that once my uncle dies she is going to sell my aunt's house out from under her and make her be the grandaughter's maid. I read some where that in VA children from a first marry is entile to a % on the person stuff and I'm try to found out my aunt's right to put her mind at rest. One more question if by chance that my uncle goes first can my aunt change her will leave her step-daughter nothing and in what time frame after my uncle passing can she do this. Thank you
2 Answers from Attorneys
Re: Does surving spouse over rule some ones will?
In VA, if someone dies without a will the surviving spouse gets everything unless the decedent has offspring from another relationship. In that case, the surviving spouse gets one third of the decedent's estate and the surviving offspring share the remaining two thirds equally. When there is a will, the surviving offspring could challenge it based on the assumption that they were inadvertently left out of the will. The best course of action would probably be for the will to mention the offspring and state that the testator is consciously not making any provisions for the offspring or to leave the offspring a small bequest. Since your aunt and uncle own everything jointly, your aunt may find that she will get everything when your uncle dies without going through probate. If everything is titled in joint names WITH RIGHT OF SURVIVORSHIP, then your aunt would inherit everything by operation of law.
If your aunt and uncle entered into a contract not to change their wills once the other party dies, your aunt would not be able to change her will. If they did not enter into such a contract then your aunt could change her will at any time.
I hope this was helpful.
Re: Does surving spouse over rule some ones will?
The Will only acts on property not disposed of by other means, and can be contested by an omitted heir. If property is registered jointly with right of survivorship, or has a specific beneficiary designation (like the beneficiary of an insurance policy or a retirement plan) these assets pass independent of the Will. In any event a contest of the estate is possible. I suggest having a new Will which specifically states that the daughter was considered and is left nothing or some nominal amount (to at least establish that your uncle was aware of her existance). There may be reasons why she is being avoided and something should be put in writing about it. On the other hand, if your uncle wants his daughter to get something, even if contingent upon his wife's death, he should state this in the Will and be sure the assets cannot be diverted by her to her family to the exclusion of the daughter. This could be accomplished by having the assets go into a trust - giving the wife a life estate, but not the right to totally dispose of the assets - with the daughter to get anything not used by the wife. I suggest he consult a reputable estate attorney to be sure everything is done properly under VA law. Also, be sure that the attorney is aware of the daughter who could also claim (highly unlikely she will prevail due to the 45 year marriage) undue influence on her father by the wife.
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