The Vermont Statutes Online

Title 14 : Decedents Estates and Fiduciary Relations

Chapter 042 : Descent and Survivors' Rights

Subchapter 002 : SURVIVORS' RIGHTS AND ALLOWANCES

• § 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.)