Q: Under Virginia Law can either spouse will their half of home to kids from a prior marriage in case they pass first?

A: Most married couples in Virginia own their real property as tenants by the entirety with the common-law right of survivorship. This tenancy is based on the old common-law fiction that a husband and wife were a single legal unit. Each spouse owns the undivided whole. Upon the death of either, the surviving spouse remains the owner of the whole. The benefit of this tenancy, in addition to survivorship, is protection from the creditors of either (except the IRS).

If a married couple owns real property as tenants by the entirety, neither could effectively convey his or her ownership without the joinder of the other spouse. A devise in a will would be ineffective, as the property was transferred by the survivorship.

If the couple were divorced, or owned the property as tenants in common and not as tenants by the entirety, then, yes, either spouse could devise his or her interest to whomever he or she chose.

There may be other ways to accomplish the spouse's intentions, which should be discussed with an experienced Virginia estate planning attorney.

A: I agree with my colleague's answer and would add that if the property is held as tenants in common and a spouse chooses to leave his or her share to his or her children then he or she needs to be sure to leave enough other assets to the surviving spouse to satisfy the surviving spouse's elective share (most likely one-third of the estate). Estate planning for situations like this can be quite complicated and the assistance of legal counsel should be obtained.