Family Allowance

Exempt Property

Homestead Exemption

Elective Share

Augmented Estate

Omitted Spouse

Family Residence

Statutory Bar to Estate Rights

It can occur that a surviving spouse will not be the sole owner of the principal family residence following the death of their spouse.

This can occur if the principal family residence is titled only in the name of the decedent spouse and the decedent spouse does not leave their entire estate or the residence to the surviving spouse. Or, perhaps the decedent spouse died intestate and is survived by children who are not children of the surviving spouse, in which case the surviving spouse will only receive a share of the estate.

Normally, if the marital residence is owned by both spouses as tenants by the entirety with right of survivorship, title to the marital residence will, upon the death of one spouse, automatically pass to the surviving spouse under the terms of the deed, and the situation mentioned above will not occur.

In those cases where a surviving spouse does not have sole title and ownership to the marital residence, there may be a question as to whether the surviving spouse can reside in the martial residence.

Virginia law addresses this situation by providing that in such instances, the surviving spouse may hold, occupy, and enjoy the principal family residence without charge for rent, repairs, taxes, or insurance until the surviving spouse's rights in the principal residence have been determined by agreement of the parties in interest or by a final court order.

If the surviving spouse is deprived of the right to use the principal family residence, he or she may petition the court for such rights and may seek damages for being deprived of such rights.

Statutory Bar to Estate Rights >>>