The Vermont Statutes Online

Title 14: Decedents Estates and Fiduciary Relations

Chapter 042: Descent and Survivors' Rights

• Subchapter 001: GENERAL PROVISIONS

• § 301. Intestate estate

  (a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs, except as modified by the decedent’s will.

  (b) A decedent’s will may expressly exclude or limit the right of an individual or a class to inherit property. If such an individual or member of such a class survives the decedent, the share of the decedent’s intestate estate that would have passed to that individual or member of such a class passes subject to any such limitation or exclusion set forth in the will.

  (c) Nothing in this section shall preclude the surviving spouse of the decedent from making the election and receiving the benefits provided by section 319 of this title. (Added 2009, No. 55, § 5, eff. June 1, 2009.)

• § 302. Dower and curtesy abolished

  The estates of dower and curtesy are abolished. (Added 2009, No. 55, § 5, eff. June 1, 2009.)

• § 303. Afterborn heirs

  For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth. (Added 2009, No. 55, § 5, eff. June 1, 2009.)

• Subchapter 002: SURVIVORS' RIGHTS AND ALLOWANCES

• § 311. Share of surviving spouse

  After payment of the debts, funeral charges, allowances to the surviving spouse and children pursuant to sections 316 and 317 of this title, and expenses of administration, the intestate share of the decedent’s surviving spouse is as follows:

  (1) The surviving spouse shall receive the entire intestate estate if no descendant of the decedent survives the decedent or if all of the decedent’s surviving descendants are also descendants of the surviving spouse.

  (2) In the event there shall survive the decedent one or more descendants of the decedent who are not descendants of the surviving spouse and are not excluded by the decedent’s will from inheriting from the decedent, the surviving spouse shall receive one-half of the intestate estate. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 312. Surviving spouse to receive household goods

  Upon motion, the surviving spouse of a decedent may receive out of the decedent’s estate all furnishings and furniture in the decedent’s household. If any objection is made, the Probate Division of the Superior Court shall decide what, if any, of such personalty shall pass under this section. Goods and effects so assigned shall be in addition to the distributive share of the estate to which the surviving spouse is entitled under other provisions of law. In making a determination pursuant to this section, the Probate Division of the Superior Court may consider the length of the decedent’s marriage or civil union, the sentimental and monetary value of the property, and the source of the decedent’s interest in the property. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 3.)

• § 313. Surviving spouse; vessel, snowmobile, or all-terrain vehicle

  Whenever the estate of a decedent who dies intestate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse shall be deemed to be the owner of the vessel, snowmobile, or all-terrain vehicle, and title to the vessel, snowmobile, or all-terrain vehicle shall automatically pass to the surviving spouse. The surviving spouse may register the vessel, snowmobile, or all-terrain vehicle pursuant to 23 V.S.A. § 3816. (Added 2009, No. 55, § 5, eff. June 1, 2009.)

• § 314. Share of heirs other than surviving spouse

  (a) The balance of the intestate estate not passing to the decedent’s surviving spouse under section 311 of this title passes to the decedent’s descendants by right of representation.

  (b) If there is no taker under subsection (a) of this section, the intestate estate passes in the following order:

  (1) to the decedent’s parents equally if both survive or to the surviving parent;

  (2) to the decedent’s siblings and the descendants of any deceased siblings by right of representation;

  (3) one-half of the intestate estate to the decedent’s paternal grandparents equally if they both survive or to the surviving paternal grandparent and one-half of the intestate estate to the decedent’s maternal grandparents equally if they both survive or to the surviving maternal grandparent and if decedent is survived by a grandparent, or grandparents on only one side, to that grandparent or those grandparents;

  (4) in equal shares to the next of kin in equal degree.

  (c) If property passes under this section by right of representation, the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants. (Added 2009, No. 55, § 5, eff. June 1, 2009.)

• § 315. Parent and child relationship

  (a) For the purpose of intestate succession, an individual is the child of his or her parents, regardless of their marital status, but a parent shall not inherit from a child unless the parent has openly acknowledged the child and not refused to support the child.

  (b) The parent and child relationship may be established in parentage proceedings under Title 15C.

  (c) A parent shall not inherit from a child conceived of sexual assault who is the subject of a parental rights and responsibilities order issued pursuant to 15 V.S.A. § 665(f). (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 44, § 6, eff. May 23, 2017; 2017, No. 195 (Adj. Sess.), § 3.)

• § 316. Allowances for surviving spouse and family during administration

  The Probate Division of the Superior Court may make reasonable allowance for the necessary expenses of support and maintenance of the surviving spouse and minor children or either, constituting the family of a decedent, out of the personal estate or the income of real or personal estate from date of death until settlement of the estate, but for no longer a period than until their shares in the estate are assigned to them or, in case of an insolvent estate, for not more than eight months after administration is granted. This allowance may take priority, in the discretion of the court, over debts of the estate. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 236, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 3.)

• § 317. Allowance to children before payment of debts

  The court may make reasonable allowance for the necessary expenses of support and maintenance of any children of the decedent until they reach 18 years of age. The court may order the executor or administrator to retain sufficient estate assets for that purpose, except where some provision is made by will for their support. The allowance shall be made before any distribution of the estate among creditors, heirs, or beneficiaries by will. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 318. Allowance to children after payment of debts

  Before any partition or division of an estate among the heirs or beneficiaries by will, an allowance may be made for the necessary expenses of support and maintenance of the children of the decedent until they reach 18 years of age. The Probate Division of the Superior Court may order the executor or administrator to retain sufficient estate assets for that purpose, except where some provision is made by will for their support. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 236, eff. Feb. 1, 2011; 2017, No. 195 (Adj. Sess.), § 3.)

• § 319. Elective share of surviving spouse; notice of rights

  (a) Subject to subsection (d) of this section, a surviving spouse may elect to waive the provisions of the decedent’s will and in lieu thereof elect to take one-half of the balance of the probate estate, after the payment of allowances, claims, and expenses.

  (b) The surviving spouse must be living at the time this election is made. An election under this section may be signed on behalf of the surviving spouse by a guardian, an agent, or an attorney-in-fact under a power of attorney that:

  (1) expressly grants the authority to make the election; or

  (2)(A) grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal’s property that is as broad or comprehensive as the principal could exercise for himself or herself; and

  (B) does not expressly exclude the authority to make the election.

  (c) An agent or attorney-in-fact may petition the Probate Division of the Superior Court to determine whether a power of attorney described in subdivision (b)(2) grants the agent or attorney-in-fact authority that is as broad or comprehensive as that which the principal could exercise for himself or herself.

  (d) A surviving spouse may not elect against a deceased spouse’s will under this section if the surviving spouse has waived the right to elect against the deceased spouse’s will pursuant to section 323 of this title.

  (e)(1) The court shall provide the surviving spouse with a notice of the rights of the surviving spouse not later than 30 days from the filing of the initial inventory.

  (2) Unless otherwise ordered by the court, a surviving spouse shall file with the court a written election to waive the provisions of a decedent’s will within four months of the later of the following dates:

  (A) the date of service of the notice of rights of surviving spouse; or

  (B) the date of service of the inventory.

  (f) Upon the filing of any subsequent or amended inventory or any accounting that reports previously undisclosed property owned by the decedent as of the date of death, the surviving spouse shall have 30 days from the date of service of the filing to elect against the newly reported property, unless otherwise ordered by the court. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 320. Effect of divorce order

  A final divorce or dissolution order from any state shall nullify a gift by will to an individual who was the decedent’s spouse at the time the will was executed and any nomination of the spouse as executor, executrix, trustee, guardian, or other fiduciary as named in the will, if the decedent was no longer married to or in a civil union with that individual at the time of death, unless the decedent’s will specifically states to the contrary. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 321. Conveyance to defeat spouse’s interest

  (a) A voluntary transfer of any property by an individual during a marriage or civil union and not to take effect until at or after the individual’s death, made without adequate consideration and for the primary purpose of defeating a surviving spouse’s right to claim the survivor’s intestate or elective share of the decedent’s property so transferred, shall be void and inoperative to bar the claim, unless the surviving spouse waived the survivor’s right to make a claim against the deceased spouse’s estate or the property transferred pursuant to section 323 of this title. If the surviving spouse has not signed a waiver of spousal rights pursuant to section 323 of this title, then the decedent shall be deemed at the time of his or her death to be the owner of the property and the court may:

  (1) increase the surviving spouse’s share of the decedent’s probate estate in an amount the court deems reasonable to account for the right the surviving spouse would otherwise have had in the property so transferred; or

  (2) if the assets of the decedent’s probate estate are insufficient to account for the right the surviving spouse would otherwise have had in the property, then order any other equitable relief the court deems appropriate.

  (b) Neither this section nor any other provision of this title shall be construed to affect an enhanced life estate deed. As used in this subsection, “enhanced life estate deed,” also known as a “Ladybird deed,” shall mean a deed that conveys a future interest in real estate that is revocable or otherwise subject to limitation, with the transfer of the remaining title rights to take place when the grantor dies. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 322. Unlawful killing affecting inheritance

  Notwithstanding sections 311 through 314 of this title or provisions otherwise made, in any case in which an individual is entitled to inherit or receive property under the last will of a decedent, or otherwise, the individual’s share in the decedent’s estate shall be forfeited and shall pass to the remaining heirs or beneficiaries of the decedent if the individual intentionally and unlawfully kills the decedent. In any proceedings to contest the right of an individual to inherit or receive property under a will or otherwise, the record of that individual’s conviction of intentionally and unlawfully killing the decedent shall be admissible in evidence and shall conclusively establish that the individual did intentionally and unlawfully kill the decedent. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 323. Written waiver of spousal rights

  (a) At any time before or during a marriage, a spouse may waive the right to an elective share of a deceased spouse’s estate, waive the right to a homestead or other allowance, and waive any other spousal rights or interest in property, in whole or in part, by a written instrument signed by the waiving spouse.

  (b) A written waiver of spousal rights is presumed to be valid unless the party contesting the waiver demonstrates that:

  (1) the waiver was not voluntary, or was made as a result of fraud, duress, or coercion;

  (2) the waiver was unconscionable when signed or is unconscionable in its application due to a material change in circumstances that arose subsequent to the execution of the instrument through no fault or no action of the contesting party;

  (3) before signing the waiver, the waiving spouse was not provided fair and reasonable disclosure of the property and financial obligations of the decedent; or

  (4) before signing the waiver, the waiving spouse did not have an opportunity for meaningful access to independent counsel.

  (c) A waiver under this section may be signed on behalf of a waiving spouse by a guardian or by an agent or an attorney-in-fact under a power of attorney that:

  (1) expressly grants the authority to make the election; or

  (2)(A) grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal’s property that is as broad or comprehensive as the principal could exercise for himself or herself; and

  (B) does not expressly exclude the authority to make the election.

  (d) An agent or attorney-in-fact may petition the Probate Division of the Superior Court to determine whether a power of attorney described in subdivision (c)(2) grants the agent or attorney-in-fact authority that is as broad or comprehensive as that which the principal could exercise for himself or herself. (Added 2017, No. 195 (Adj. Sess.), § 3.)

• Subchapter 003: DESCENT, OMITTED ISSUE, AND LAPSED LEGACIES

• § 331. Degrees; how computed: kindred of half-blood

  Kindred of the half-blood shall inherit the same share they would inherit if they were of the whole blood. (Added 2009, No. 55, § 5, eff. June 1, 2009.)

• § 332. Share of afterborn child

  When a child of a testator is born after the making of a will and provision is not made in the will for that child, he or she shall have the same share in the estate of the testator as if the testator had died intestate unless it is apparent from the will that it was the intention of the testator that provision should not be made for the child. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 333. Share of child or descendant of child omitted from will

  When a testator omits to provide in the testator’s will for any child of the testator, or for the descendants of a deceased child, and it appears that the omission was made by mistake or accident, the child or descendants, as the case may be, shall have and be assigned the same share of the estate of the testator as if the testator had died intestate. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 334. Afterborn and omitted child; from what part of estate share taken

  When a share of a testator’s estate is assigned to a child born after the making of a will, or to a child or the descendant of a child omitted in the will, the share shall be taken first from the estate not disposed of by the will, if there is any. If that is not sufficient, so much as is necessary shall be taken from the devisees or legatees in proportion to the value of the estate they respectively receive under the will. If the obvious intention of the testator, as to some specific devise, legacy, or other provision in the will, would thereby be defeated, the specific devise, legacy, or provision may be exempted from the apportionment and a different apportionment adopted in the discretion of the court. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 335. Beneficiary dying before testator; descendants to take

  When a testamentary gift is made to a child or other kindred of the testator, and the designated beneficiary dies before the testator, leaving one or more descendants who survive the testator, the descendants shall take the gift that the designated beneficiary would have taken if the designated beneficiary had survived the testator, unless a different disposition is required by the will. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 336. Individual absent and unheard of; share of estate

  If an individual entitled to a distributive share of the estate of a decedent is absent and unheard of for six years, two of which are after the death of the decedent, the court in which the decedent’s estate is pending may order the share of the absent individual distributed in accordance with the terms of the decedent’s will or the laws of intestacy as if the absent individual had not survived the decedent. If the absent individual proves to be alive, he or she shall be entitled to the share of the estate notwithstanding prior distribution, and may recover in an action on this statute any portion thereof that any other individual received under order. Before an order is made for the payment or distribution of any money or estate as authorized in this section, notice shall be given as provided by the Vermont Rules of Probate Procedure. (Added 2009, No. 55, § 5, eff. June 1, 2009; amended 2017, No. 195 (Adj. Sess.), § 3.)

• § 337. Requirement that individual survive decedent for 120 hours

  Except as provided in the decedent’s will, an individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, intestate succession, and taking under decedent’s will, and the decedent’s heirs and beneficiaries shall be determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir or beneficiary survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in escheat. (Added 2009, No. 55, § 5, eff. June 1, 2009.)

• § 338. Distribution; order in which assets appropriated; abatement

  (a)(1) Except as provided in subsection (b) of this section, shares of distributees given under a will abate, without any preference or priority as between real and personal property, in the following order:

  (A) property not disposed of by the will;

  (B) residuary devises and bequests;

  (C) general devises and bequests;

  (D) specific devises and bequests.

  (2) For purpose of abatement, a general devise or bequest charged on any specific property or fund is a specific devise or bequest to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise or bequest to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

  (b) If the will expresses an order of abatement or if the testamentary plan or the express or implied purpose of a devise or bequest would be defeated by the order of abatement listed in subsection (a) of this section, the shares of the distributees shall abate as may be necessary to give effect to the intention of the testator.

  (c) If the subject of a preferred devise or bequest is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets. (Added 2009, No. 55, § 5, eff. June 1, 2009.)