Updated July 31, 2026. Quick answer: it depends on three questions asked in order, and the statute is only the third. (1) How is the house titled? Joint tenancy or a TOD deed passes it outside intestacy entirely — the will-less split never touches it. (2) Is it community or separate property? In community-property states a home bought during the marriage is likely half the survivor’s already; a home bought BEFORE the marriage is separate — and separate property is exactly what blended-family intestacy divides with the children. (3) Only then does the state’s formula apply — and with children from a prior relationship, that formula usually gives the spouse a fraction, not the house.
The fact pattern that fills the legal forums
He owned the house before the remarriage; she moved in; he died without a will. In most states, that house is his separate property, his children from the first marriage take a substantial share, and the widow becomes a co-owner with her stepchildren — the arrangement most likely to end in a forced sale or a partition suit. The survivable versions of this story all involve paperwork done in advance: a will, a TOD deed where the state allows one, a trust, or retitling — each with different tradeoffs (retitling has real costs).
One protection survives even with no paperwork: most states give a surviving spouse homestead rights or allowances — a right to occupy for some period, or a dollar allowance off the top — which soften but do not fix the co-ownership problem. Whether the house counts as separate at all: the decision aid. The full blended-family map: who inherits what.
Co-owning a house with your stepchildren is the default. Choose something better.
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