Vermont funeral rights

Vermont Surviving Spouse Rights — Elective Share, Allowances, and the Deadline to Claim Them (2026)

By Oleg Kachko · Updated September 6, 2026

✓ Verified September 2026

Vermont Surviving Spouse Rights exist because a will cannot cut a husband or wife out entirely. Every state protects a widow or widower with a share they may claim regardless of what the will says, plus allowances that come off the top before creditors and other heirs.

This guide gives the Vermont answer in plain English: what the elective share is, the deadline to claim it, whether trusts and joint accounts count, the homestead, exempt-property and family allowances, what happens when the marriage came after the will, and what forfeits the rights. All facts are from Vermont law, verified as of September 2026.

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Vermont Surviving Spouse Rights: At a Glance

Here are the Vermont facts that decide most Vermont surviving spouse rights claims:

Elective share Vermont gives a surviving spouse the right to waive the will and instead take one-half of the balance of the decedent’s probate estate, after payment of allowances, claims, and expenses (14 V.S.A. § 319(a)). This is a flat one-half — Vermont does not use a sliding scale tied to length of marriage, and the fraction does not change based on whether the decedent left descendants. The surviving spouse must be living at the time the election is made; a guardian, agent, or attorney-in-fact may sign the election only where a power of attorney expressly grants that authority (14 V.S.A. § 319). Because the base is the probate estate net of allowances, claims, and administration expenses, the dollar result depends on what the inventory and accounting ultimately show.
Deadline to elect Unless the court orders otherwise, the surviving spouse must file a written election with the Probate Division within 4 months of the later of the date of service of the notice of rights of surviving spouse or the date of service of the estate’s initial inventory (14 V.S.A. § 319). The court must serve the surviving spouse with the notice of rights no later than 30 days from the filing of the initial inventory, so the clock is driven by service of court papers rather than by the date of death. If a later or amended inventory or an accounting reports previously undisclosed property owned at death, the spouse has 30 days from service of that filing to elect against the newly reported property, unless the court orders otherwise (14 V.S.A. § 319). Missing the window can end the right, so many families confirm the exact service dates with the Probate Division clerk or a licensed Vermont attorney.
Counts non-probate assets (augmented estate) NO. Vermont measures the elective share against the probate estate only — one-half of the balance after allowances, claims, and expenses under 14 V.S.A. § 319 — and has not adopted the Uniform Probate Code augmented-estate computation that pulls in revocable trusts, joint accounts, POD designations, and lifetime gifts. The one significant reach-back is 14 V.S.A. § 321: a voluntary transfer made during the marriage or civil union, not to take effect until at or after death, made without adequate consideration and for the primary purpose of defeating the spouse’s intestate or elective share, is void as against that claim, and the decedent is deemed to have owned the property at death for purposes of setting out the spouse’s share. Section 321 expressly does not disturb an enhanced life estate (“Lady Bird”) deed.
Community property state NO. Vermont is a common-law (separate property) state, so there is no automatic one-half community interest vesting in the surviving spouse at death. Spousal protection instead comes from the elective share in 14 V.S.A. § 319, the homestead interest in 27 V.S.A. § 105, and the administration allowances in 14 V.S.A. §§ 316–318.
Homestead allowance Vermont does not use a flat UPC-style homestead allowance figure in Title 14. Instead, under 27 V.S.A. § 105, when a person dies leaving a surviving spouse, the decedent’s homestead — to the value set by that chapter — passes to and vests in the surviving spouse free from the decedent’s debts unless the debt was legally charged on the homestead during life, and the surviving spouse takes the same estate in the homestead the decedent held at death. The Probate Division of the Superior Court in which the estate is pending sets out the homestead to the surviving spouse. The homestead value under 27 V.S.A. § 101 is 125000, covering the dwelling house, outbuildings, and the land used with them.
Exempt property Vermont sets no single dollar exempt-property allowance for a surviving spouse — UNVERIFIED as a dollar figure, because the Vermont statutes instead identify specific categories. Under 14 V.S.A. § 312, on motion the surviving spouse may receive out of the estate all furnishings and furniture in the decedent’s household where the decedent leaves no descendants who object. Under 14 V.S.A. § 313, where an intestate decedent’s estate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse is deemed the owner and title passes automatically. Households comparing Vermont to UPC states should not assume a 20000-type allowance exists here; check the current sections with the Probate Division or a licensed Vermont attorney.
Family allowance Under 14 V.S.A. § 316, the Probate Division of the Superior Court may make a reasonable allowance for the necessary expenses of support and maintenance of the surviving spouse and minor children constituting the family of the decedent, paid out of the personal estate or the income of real or personal estate. The allowance runs from the date of death until settlement of the estate, but for no longer than until their shares are assigned to them, or — in the case of an insolvent estate — for not more than 8 months after administration is granted. The statute fixes no dollar cap; the amount is what the court finds reasonable on the facts. Separate allowances for the decedent’s children to age 18 are addressed in 14 V.S.A. §§ 317 and 318, and § 318 does not preclude the surviving spouse from also making the § 319 election.
Court / filing The Probate Division of the Vermont Superior Court for the probate district where the decedent’s estate is pending. — A written election to waive the provisions of the decedent’s will (the elective share election) filed under 14 V.S.A. § 319; the Vermont Judiciary form historically used is “Notice of Elections and/or Waivers by Spouse” (legacy form PE49), paired with the court’s “Notice of Rights of Surviving Spouse.”

Why the Will Cannot Disinherit a Spouse in Vermont

The law treats marriage as an economic partnership. A spouse who spent decades contributing to a household is not left to the mercy of a will written in anger, under pressure, or decades ago. In separate-property states the protection is the elective share: a fixed fraction of the estate the surviving spouse may take instead of whatever the will provides.

In community property states it is built in — half of everything acquired during the marriage already belongs to the survivor and never passes under the will at all. Vermont uses one of those two systems, and the table above says which.

The right is personal to the spouse and must be claimed. Nothing happens automatically: a surviving spouse who does nothing takes what the will gives, even if that is nothing. The election has a deadline, it is filed in the probate court, and it is the single Vermont surviving spouse rights fact that a grieving spouse most often learns too late.

The Vermont Elective Share

Vermont gives a surviving spouse the right to waive the will and instead take one-half of the balance of the decedent’s probate estate, after payment of allowances, claims, and expenses (14 V.S.A. § 319(a)). This is a flat one-half — Vermont does not use a sliding scale tied to length of marriage, and the fraction does not change based on whether the decedent left descendants.

The surviving spouse must be living at the time the election is made; a guardian, agent, or attorney-in-fact may sign the election only where a power of attorney expressly grants that authority (14 V.S.A. § 319). Because the base is the probate estate net of allowances, claims, and administration expenses, the dollar result depends on what the inventory and accounting ultimately show.

The deadline: Unless the court orders otherwise, the surviving spouse must file a written election with the Probate Division within 4 months of the later of the date of service of the notice of rights of surviving spouse or the date of service of the estate’s initial inventory (14 V.S.A. § 319).

The court must serve the surviving spouse with the notice of rights no later than 30 days from the filing of the initial inventory, so the clock is driven by service of court papers rather than by the date of death.

If a later or amended inventory or an accounting reports previously undisclosed property owned at death, the spouse has 30 days from service of that filing to elect against the newly reported property, unless the court orders otherwise (14 V.S.A. § 319). Missing the window can end the right, so many families confirm the exact service dates with the Probate Division clerk or a licensed Vermont attorney.

What counts: NO. Vermont measures the elective share against the probate estate only — one-half of the balance after allowances, claims, and expenses under 14 V.S.A. § 319 — and has not adopted the Uniform Probate Code augmented-estate computation that pulls in revocable trusts, joint accounts, POD designations, and lifetime gifts.

The one significant reach-back is 14 V.S.A. § 321: a voluntary transfer made during the marriage or civil union, not to take effect until at or after death, made without adequate consideration and for the primary purpose of defeating the spouse’s intestate or elective share, is void as against that claim,

and the decedent is deemed to have owned the property at death for purposes of setting out the spouse’s share.

Section 321 expressly does not disturb an enhanced life estate (“Lady Bird”) deed.

Community property: NO. Vermont is a common-law (separate property) state, so there is no automatic one-half community interest vesting in the surviving spouse at death. Spousal protection instead comes from the elective share in 14 V.S.A. § 319, the homestead interest in 27 V.S.A. § 105, and the administration allowances in 14 V.S.A. §§ 316–318.

Allowances the Spouse Gets on Top of the Will

Homestead: Vermont does not use a flat UPC-style homestead allowance figure in Title 14.

Instead, under 27 V.S.A. § 105, when a person dies leaving a surviving spouse, the decedent’s homestead — to the value set by that chapter — passes to and vests in the surviving spouse free from the decedent’s debts unless the debt was legally charged on the homestead during life, and the surviving spouse takes the same estate in the homestead the decedent held at death.

The Probate Division of the Superior Court in which the estate is pending sets out the homestead to the surviving spouse. The homestead value under 27 V.S.A. § 101 is 125000, covering the dwelling house, outbuildings, and the land used with them.

Exempt property: Vermont sets no single dollar exempt-property allowance for a surviving spouse — UNVERIFIED as a dollar figure, because the Vermont statutes instead identify specific categories. Under 14 V.S.A. § 312, on motion the surviving spouse may receive out of the estate all furnishings and furniture in the decedent’s household where the decedent leaves no descendants who object.

Under 14 V.S.A. § 313, where an intestate decedent’s estate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse is deemed the owner and title passes automatically. Households comparing Vermont to UPC states should not assume a 20000-type allowance exists here; check the current sections with the Probate Division or a licensed Vermont attorney.

Family allowance: Under 14 V.S.A. § 316, the Probate Division of the Superior Court may make a reasonable allowance for the necessary expenses of support and maintenance of the surviving spouse and minor children constituting the family of the decedent, paid out of the personal estate or the income of real or personal estate.

The allowance runs from the date of death until settlement of the estate, but for no longer than until their shares are assigned to them, or — in the case of an insolvent estate — for not more than 8 months after administration is granted. The statute fixes no dollar cap; the amount is what the court finds reasonable on the facts.

Separate allowances for the decedent’s children to age 18 are addressed in 14 V.S.A. §§ 317 and 318, and § 318 does not preclude the surviving spouse from also making the § 319 election.

Married After the Will Was Signed

Vermont has no separate omitted-spouse or pretermitted-spouse statute of the UPC type; the former chapter 45 provisions were repealed by 2009 Act 55 when chapter 42 replaced them.

A spouse who married the decedent after the will was signed and is unnamed in it relies on the same remedy as any other surviving spouse: the election under 14 V.S.A. § 319 to waive the will and take one-half of the balance of the probate estate after allowances, claims, and expenses.

The homestead interest under 27 V.S.A. § 105 and the § 316 allowance also remain available, and 14 V.S.A. § 321 may reach transfers made primarily to defeat the share.

Waiver and Disqualification in Vermont

Under 14 V.S.A. § 323, a spouse may waive the right to an elective share, waive the right to a homestead or other allowance, and waive any other spousal right or interest in property, in whole or in part, by a written instrument signed by the waiving spouse.

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Such a written waiver is presumed valid unless the party contesting it shows that the waiver was not voluntary or resulted from fraud, duress, or coercion; that it was unconscionable when signed or is unconscionable in application because of a material change in circumstances arising after execution through no fault or action of the contesting party; or that before signing,

the waiving spouse was not provided fair and reasonable disclosure of the decedent’s property and financial obligations.

The statute does not require independent counsel as a condition of validity, though § 321 ties a valid § 323 waiver to the transfer rules.

What forfeits the rights: Vermont’s clearest forfeiture rules are statutory rather than conduct-based.

A final divorce or dissolution order from any state nullifies a will gift to the individual who was the decedent’s spouse when the will was executed, along with any nomination of that person as fiduciary, if the decedent was no longer married to or in a civil union with that person at death, unless the will states otherwise (14 V.S.A. § 320).

An individual who intentionally and unlawfully kills the decedent forfeits their share, which passes to the remaining heirs or beneficiaries (14 V.S.A. § 322). A separate abandonment bar applies to wrongful-death and survival recoveries: no share is allowed to a surviving spouse who abandoned the decedent or persistently neglected to support the decedent before death (14 V.S.A. § 1492).

A general abandonment forfeiture of the § 319 elective share itself is UNVERIFIED.

If there is no will: Under 14 V.S.A. § 311, a surviving spouse takes the entire intestate estate when the decedent leaves no descendants or when all surviving descendants are also descendants of the surviving spouse, and one-half of the intestate estate when there are surviving descendants who are not descendants of the surviving spouse and are not excluded by the will.

The Vermont dying-without-a-will guide linked below covers that in full.

Other Vermont rules: Vermont’s share is a flat one-half of the net probate estate with no sliding scale by length of marriage and no augmented estate (14 V.S.A. § 319). The election clock is triggered by service of the court’s notice of rights or the initial inventory rather than by the date of death, and reopens for 30 days whenever a later inventory or accounting discloses previously unreported property.

Vermont retains a distinct homestead vesting rule at 27 V.S.A. § 105 — the homestead, to the 125000 value in 27 V.S.A. § 101, passes to the surviving spouse free of the decedent’s debts and is set out by the Probate Division — and an anti-defeat provision at 14 V.S.A. § 321 that voids death-effective transfers made without adequate consideration primarily to defeat the spousal share,

while expressly preserving enhanced life estate deeds.

Civil union partners are treated alongside spouses in these sections.

Mistakes That Cost a Surviving Spouse in Vermont

The first mistake is waiting. The election to take the statutory share has a deadline that runs from death or from the will’s admission, and the probate court cannot extend it for a spouse who did not know. The second is assuming the will is the whole picture.

A spouse who was left “the house” may be entitled to considerably more under the Vermont surviving spouse rights rules — and may also be entitled to allowances the will never mentions.

The third mistake is signing something in the first weeks. A release, a family settlement, or a disclaimer offered by another heir can waive rights the spouse did not know they had. The last is overlooking a prenuptial agreement.

If one exists, it may have waived the elective share — but only if it met the state’s requirements for disclosure and fairness at the time, which is a question a lawyer should answer before anyone relies on it.

What to Expect When You Claim Vermont Surviving Spouse Rights

Claiming Vermont surviving spouse rights is a filing inside the probate case, not a separate lawsuit. The surviving spouse files the election and any allowance requests with the court, the personal representative calculates the estate the share is measured against, and the court resolves any dispute over what counts.

Where the will already gives the spouse more than the statutory share, the election is unnecessary and most spouses do not file one.

Two things surprise people. The first is how much depends on the calendar — the election deadline is short in some states and runs whether or not the spouse knew. The second is that the allowances are separate from the share and are paid first, ahead of creditors, which is often what keeps a surviving spouse in the home during the months the estate takes to settle.

You don’t have to do this alone

If you are settling a loved one’s estate in Vermont, your state’s probate court self-help center and free legal-aid offices can walk you through the process at no cost. For an active probate or a deadline, talk to a licensed probate attorney in your state.

Key Takeaways: Vermont Surviving Spouse Rights

  • The will cannot disinherit you: Vermont surviving spouse rights guarantee a share the spouse may claim no matter what the will says.
  • You must elect: Vermont surviving spouse rights are not automatic; the statutory share is claimed by a filing in the probate court.
  • The deadline is short: the election that secures Vermont surviving spouse rights runs from death or the will’s admission and cannot be extended for not knowing.
  • Allowances come first: the homestead, exempt-property, and family allowances under Vermont surviving spouse rights are paid before creditors and heirs.
  • Trusts may count: in augmented-estate states, Vermont surviving spouse rights reach assets placed in trusts and joint accounts, not only probate property.
  • Community property is different: where it applies, half is already the survivor’s, and Vermont surviving spouse rights are about the other half.
  • A late marriage changes the will: a spouse married after the will was signed usually takes an intestate share under Vermont surviving spouse rights.
  • Prenups can waive: Vermont surviving spouse rights can be given up in a prenuptial or postnuptial agreement, but only one that met the state’s disclosure rules.
  • Separation can forfeit: a pending divorce or abandonment can end Vermont surviving spouse rights in some states before the death.
  • Sign nothing early: a release or disclaimer offered by another heir can waive Vermont surviving spouse rights the spouse never knew about.
  • Compare before you elect: Vermont surviving spouse rights are worth claiming only when the statutory share exceeds what the will gives.
  • The intestate share is separate: when there is no will, Vermont surviving spouse rights are set by the intestacy rules on the companion guide.

Quick Answers: Vermont Surviving Spouse Rights

What are Vermont Surviving Spouse Rights if the will leaves the spouse nothing?

A statutory share — commonly a third to a half of the estate — plus allowances paid ahead of creditors. Vermont Surviving Spouse Rights exist precisely for this case, but they must be claimed by a filing.

How long does a spouse have to claim Vermont Surviving Spouse Rights?

A fixed period after death or after the will is admitted, set by statute. Missing it forfeits the statutory share, which is the most common way Vermont surviving spouse rights are lost.

Do Vermont Surviving Spouse Rights include assets in a trust?

In augmented-estate states, yes — trusts, joint accounts, and large gifts are added back before the share is calculated. In others, Vermont surviving spouse rights reach only the probate estate.

What allowances come with Vermont Surviving Spouse Rights?

A homestead allowance or the right to remain in the home, an exempt-property allowance for household goods and a car, and a family allowance during administration. These Vermont surviving spouse rights are paid first.

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Official Vermont Sources & Resources

This Vermont guide was last verified against official sources in September 2026. Laws change — verify with your state court or a licensed attorney.

More Vermont Estate Guides

Disclaimer: This guide is informational only and is not legal or tax advice. Estate, probate, and tax laws change and vary by state and county. Verify current rules and dollar figures with your state’s court, statute, or a licensed attorney or tax professional before acting. For urgent matters like an active probate or a tax deadline, consult a licensed professional in your state right away.

Estate planning? Make sure your life insurance is in order — see Life Insure Guide. Worried about Medicaid estate recovery? See Medicare Cover Guide. Divorced recently? Update your will and beneficiaries — see Divorce Help Guide.