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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.)
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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.)