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Vermont Surviving Spouse Rights
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Vermont Surviving Spouse Rights

Vermont surviving spouse rights: the one-half elective share at 14 V.S.A. § 319, its four month clock, and the $125,000.00 homestead at 27 V.S.A. § 105.

By Settled Editorial

A surviving spouse in Vermont can reject what a will leaves them and take one half of the balance of the probate estate instead. 14 V.S.A. § 319 sets that elective share, and the written election is due four months after the later of two service dates. Separately, 27 V.S.A. § 105 vests the homestead, worth up to $125,000.00, in the surviving spouse whether or not the decedent left a will.

Those two rights sit on top of a handful of smaller ones: household goods, a discretionary support allowance during administration, and up to two motor vehicles. This guide walks each one, gives the exact clock, names the two Judiciary forms that carry the decisions, and shows how a written waiver ends all of it. Every rule below was read at the Vermont Statutes Online on August 4, 2026. Read it beside the Vermont probate guide and take any live deadline to your county Probate Division or a licensed Vermont attorney.

Chapter 42 Is the Live Law, and Chapter 41 Is Not

Start here, because the single most common Vermont citation error points at a chapter that no longer exists.

14 V.S.A. chapter 41 is still printed under the heading "Survivors' Rights and Allowances," which is exactly what a researcher searching for spousal rights would click. It is empty. Its section list reads "§§ 401-408. Repealed. 2009, No. 55, § 4, eff. June 1, 2009," followed by a separate line repealing § 409 back in 1985. Chapter 43, "Estates in Lieu of Dower and Curtesy," is gone the same way: "§§ 461-475. Repealed. 2009, No. 55, § 4."

Everything a Vermont surviving spouse can claim now lives in 14 V.S.A. chapter 42, subchapter 2, which the same act wrote from scratch. Act 55 of 2009 added the chapter in its Sec. 5 and made it effective on passage, June 1, 2009, and its own Sec. 14(a) applies the new chapter only to the estates of people dying on or after that date. An older opinion letter or a summary built on chapter 41 is describing law that Vermont deleted.

One casualty of the same rewrite is worth naming. 14 V.S.A. § 302 is one sentence long: "The estates of dower and curtesy are abolished." Vermont no longer gives a widow a life interest that a widower would not get.

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The Elective Share Is One Half of What Is Left

14 V.S.A. § 319(a) gives a surviving spouse the right 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."

Three words in that sentence carry most of the weight.

Will. The § 319 election runs against a will and nothing else. The Judiciary's own election form carries a checkbox reading "My spouse died without a Will and this election does not apply to me." Where there is no will, the spouse takes under § 311 instead, and there is nothing to elect against.

Balance. The share is measured after the estate pays allowances, claims, and expenses, so it is a half of the remainder, not a half of the gross inventory. An estate carrying heavy debt can produce an elective share far below half of what the spouse expected.

Probate estate. Vermont applies no augmented-estate calculation. Life insurance with a named beneficiary, a joint account with survivorship, a funded revocable trust, and real estate that passed under an enhanced life estate deed are outside the probate estate and outside the § 319 math.

QuestionVermont answerStatute
Size of the elective shareOne half of the balance of the probate estate§ 319(a)
What comes off firstAllowances, claims, and expenses§ 319(a)
Does the share change if there are childrenNo, Vermont sets one figure§ 319(a)
Available in an intestate estateNo, the § 311 share governs instead§ 319(a)
Spouse must be alive to electYes, at the time the election is made§ 319(b)
Court serves the notice of rightsWithin 30 days of the initial inventory filing§ 319(e)(1)
Election deadline4 months from the later of two service dates§ 319(e)(2)
Newly reported property30 days from service of that filing§ 319(f)

§ 319(b) also answers a question families ask when the survivor is ill. A guardian, an agent, or an attorney-in-fact may sign the election for the surviving spouse where the document either expressly grants that authority or grants management and disposition authority as broad as the principal could exercise and does not expressly exclude the election. § 319(c) lets the agent petition the Probate Division of the Superior Court for a ruling on whether the grant is broad enough, which is a clean way to remove doubt before a four month window closes.

The Four Month Clock Starts With Paperwork, Not With the Death

Vermont hangs the election deadline on service dates rather than on the date of death, so the calendar cannot be built from the funeral.

  1. The executor or administrator files an inventory within 60 days after appointment under 14 V.S.A. § 1051. The court can extend that for good cause.
  2. The court then serves the surviving spouse with a notice of rights within 30 days from the filing of the initial inventory, under § 319(e)(1).
  3. The spouse files a written election within four months of the later of the date the notice of rights was served or the date the inventory was served, under § 319(e)(2), unless the court orders otherwise.
  4. If a later inventory, an amended inventory, or an accounting reports property nobody had disclosed, the spouse gets 30 days from service of that filing to elect against the newly reported property, under § 319(f).

Two Judiciary forms carry this. Form 700-00047, Notice of Rights of Surviving Spouse, is what the court sends; it restates the four month rule, the homestead right, and the support allowance on a single page. Form 700-00049, Notice of Elections and/or Waivers by Surviving Spouse, is what the spouse files back.

Form 700-00049 bundles four separate decisions into one signature: the § 319 election, the 27 V.S.A. § 105 homestead, an award of household goods, and a request for support. Each has an elect box and a waive box. The form closes with the line "I understand that I cannot revoke any waivers set forth above and I will not be able to change my mind at a later date." A spouse who ticks waive on all four to keep the paperwork simple has given up the homestead as well as the share.

The Homestead Passes Free of the Decedent's Debts

27 V.S.A. § 105 is the quieter of the two big rights, and it reaches a spouse the will ignored entirely. Where a person dies leaving a surviving spouse, the homestead "to the value provided in this chapter shall pass to and vest in the surviving spouse without being subject to the payment of debts of the deceased, unless legally charged on the homestead in the person's lifetime." The Probate Division where the estate is pending sets the homestead out to the spouse.

Four points a general estate page will miss.

  • The figure is $125,000.00. 27 V.S.A. § 101 defines a homestead as a dwelling house, outbuildings, and the land used with them, "not exceeding $125,000.00 in value." Act 55 of 2009 raised it from $75,000.00 in its Sec. 8, effective July 1, 2009. The amendment line on § 101 ends with 2023, No. 6, § 314, which is a technical corrections act that rewrote "such person" as "the person" and left the dollar figure alone. Reading that last entry as the source of the number misdates it by fourteen years.
  • It is a value cap, not a whole house. A Vermont home worth more than $125,000.00 does not pass to the spouse in full under this section. Where the homestead has to be separated from other real estate, 27 V.S.A. § 181 lets the court appoint three commissioners to appraise and set it out, with their report recorded in the town land records as a severance.
  • It does not depend on a will. § 105 draws no testate line, and form 700-00047 says the right applies "regardless of whether the decedent made a Last Will."
  • It can be forfeited in one narrow case. 27 V.S.A. § 106 lets the fiduciary apply to sell the homestead where minor children are living and the survivor had left the home through their own fault or with intent to abandon those children. The net proceeds then go to the minor children.

Household Goods, Boats, and Snowmobiles

14 V.S.A. § 312 lets a surviving spouse receive, on motion, "all furnishings and furniture in the decedent's household." Goods assigned this way come in addition to the spouse's distributive share. If someone objects, the Probate Division decides what passes, weighing the length of the marriage or civil union, the sentimental and monetary value of the property, and the source of the decedent's interest in it.

14 V.S.A. § 313 works differently. Where an intestate estate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse is deemed the owner and title passes automatically, and the spouse may register it under 23 V.S.A. § 3816. No motion is needed and no court order is required.

Vermont attaches no dollar figure to either award, and it has no separate exempt property allowance stated in dollars. These two item-based awards are what a Vermont surviving spouse gets. The Vermont exempt property guide covers both and untangles them from the debtor exemptions in 12 V.S.A. § 2740, which are not probate allowances at all.

Support During Administration Is Discretionary and Carries No Number

14 V.S.A. § 316 lets the Probate Division "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," paid out of the personal estate or the income of real or personal estate.

Here is what makes Vermont's version unusual. The statute states no dollar amount, no percentage, and no default. The court sets the figure. The period runs from the date of death until the estate is settled, and it stops earlier when the shares are assigned. Only where the estate proves insolvent does the statute impose a ceiling, and that ceiling is eight months after administration is granted. The last sentence gives the allowance real teeth: it "may take priority, in the discretion of the court, over debts of the estate."

Children get their own two sections. § 317 allows support for the decedent's children until they reach 18 and directs that it be made before any distribution among creditors, heirs, or beneficiaries. § 318 allows the same support after debts are paid and before any partition or division. Both step aside where the will already provides for the children's support.

One practical note that only shows up on the form: a request for support has to be filed with an Affidavit of Income and Expenses. The Vermont family allowance guide walks the motion, the timing, and what the court weighs.

Up to Two Motor Vehicles Pass Without Probate

23 V.S.A. § 2023(e) sits outside Title 14 and gets missed constantly. Where an intestate estate "consists principally of an automobile," the surviving spouse is deemed the owner and title passes automatically. § 2023(e)(1) extends the same treatment where a will or other testamentary document "does not specifically address disposition of motor vehicles."

The Department of Motor Vehicles registers and titles the vehicle in the surviving spouse's name on request, no fee is assessed, and the transaction is exempt from the purchase and use tax on motor vehicles. § 2023(e)(2) caps the whole subsection at no more than two motor vehicles and withholds it where the vehicle is titled in the name of anyone other than the decedent and the surviving spouse.

The subsection reaches no further than motor vehicles. A vessel, snowmobile, or ATV travels under 14 V.S.A. § 313, and Vermont real estate has no equivalent automatic route.

Without a Will, the Share Comes From § 311

14 V.S.A. § 311 sets the intestate share, and it opens by netting the estate first: the share is calculated after payment of debts, funeral charges, the §§ 316 and 317 allowances, and expenses of administration.

  • The surviving spouse takes the entire intestate estate where no descendant of the decedent survives, or where all of the decedent's surviving descendants are also descendants of the surviving spouse.
  • The surviving spouse takes one half where one or more surviving descendants are not descendants of the spouse and are not excluded by the decedent's will from inheriting.

The Vermont intestate succession guide carries the full ladder for everyone below the spouse, along with the 120 hour survival rule and the half-blood rule.

A Written Waiver Ends All of It

14 V.S.A. § 323 is short and powerful. At any time before or during a marriage, a spouse may waive the right to an elective share, 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. § 319(d) then blocks any later election by a spouse who signed one.

The waiver is presumed to be valid. A spouse contesting it must prove one of four things:

  1. The waiver was not voluntary, or came about through fraud, duress, or coercion.
  2. It was unconscionable when signed, or is unconscionable now because circumstances changed materially through no fault or action of the contesting party.
  3. The waiving spouse was not given fair and reasonable disclosure of the decedent's property and financial obligations before signing.
  4. The waiving spouse had no opportunity for meaningful access to independent counsel before signing.

An agent can sign a waiver only on express authority. 14 V.S.A. § 4031(a)(10) lists a written waiver of spousal rights under § 323 among the twelve acts an agent may perform only where a power of attorney expressly grants it. A general grant of authority does not reach it.

Transfers Made to Cut a Spouse Out

14 V.S.A. § 321 reaches lifetime transfers designed to defeat the survivor. A voluntary transfer of property made during a marriage or civil union, not taking effect until at or after death, made without adequate consideration and for the primary purpose of defeating a surviving spouse's right to claim the intestate or elective share, is void and inoperative to bar the claim. The decedent is then treated as the owner at death, and the court may increase the spouse's share of the probate estate by a reasonable amount, or order other equitable relief where the probate assets fall short.

§ 321(b) carves out one instrument by name. Nothing in § 321 or anywhere in Title 14 affects an enhanced life estate deed, which the subsection defines as a deed conveying a revocable future interest in real estate with the remaining title rights passing at the grantor's death. Vermont codified that deed at 27 V.S.A. chapter 6, and a home that passed under one is outside this section's reach. The guide to avoiding probate in Vermont covers how that deed works.

Divorce cuts the other way. 14 V.S.A. § 320 nullifies a gift by will to a person who was the decedent's spouse when the will was signed, and any nomination of that person as executor, trustee, guardian, or other fiduciary, where the decedent was no longer married to or in a civil union with them at death, unless the will "specifically states to the contrary."

Either Spouse, Civil Unions, and the Old Statutory Wording

Parts of the homestead chapter still carry wording from an older draft. 27 V.S.A. § 141 speaks of "the wife or husband" joining a conveyance, and § 106 speaks of "the widow or surviving husband." Those are two-sided phrasings that name both sexes, not one-sided grants.

The operative modern rule is the neutral one. § 302 abolished dower and curtesy, chapter 42 was written in 2009 entirely in the language of the "surviving spouse," and the 2023 technical corrections act rewrote § 105 itself to say "surviving spouse" where it used to say "his or her." A surviving spouse of either sex claims under the same sections.

Civil unions are covered by name. 15 V.S.A. § 1204 gives parties to a civil union all the same benefits and protections as spouses in a civil marriage, and its subsection (e) lists "descent and distribution, intestate succession, waiver of will, survivorship" and "probate law and procedure" among them. 14 V.S.A. §§ 312 and 321 each reference marriage or civil union directly.

Where These Rights Rank Against the Estate's Debts

Ordering matters when the estate is thin, and Vermont does not put spousal rights in one place.

  • The homestead passes free of the decedent's debts under § 105 unless a debt was legally charged on it during the decedent's lifetime, which puts a mortgage or a recorded lien ahead of the spouse but leaves unsecured creditors behind.
  • The support allowance under § 316 may take priority over debts of the estate, at the court's discretion.
  • The elective share under § 319 comes last of the three, because it is a half of the balance after allowances, claims, and expenses.
  • Everything else falls into the payment order at 14 V.S.A. § 1205, which pays administration costs first, then funeral, burial, headstone, and perpetual care up to $3,800.00 plus last illness medical expenses, then wages earned in the three months before death up to $300.00 per claimant, then all other claims prorated.

The Vermont creditor claims guide explains the four month claim window that decides which debts get into that order at all, and the Vermont probate deadlines guide lays the spousal dates beside the rest of the calendar. If you are the fiduciary rather than the spouse, the Vermont executor duties guide covers your side of serving the inventory and the notice of rights.

What Shapes a Vermont Spousal Claim

Six facts decide how these rights land in any given estate.

  1. Whether an estate has been opened, and who was appointed. Nothing on this page starts running until an inventory is filed.
  2. When form 700-00047 is served. The four month clock runs from the later of that service date and the date the inventory is served.
  3. What the inventory lists. Property no filing disclosed is what § 319(f) exists for, and it carries its own 30 day window.
  4. How the four questions on form 700-00049 are answered. Each is a separate box. Waiving the elective share does not require waiving the homestead.
  5. Whether a prenuptial or postnuptial agreement was ever signed. A § 323 waiver ends the election before it starts.
  6. The size and shape of the estate. The Vermont small estate guide covers the simplified routes, and the Vermont will requirements guide covers what makes the will itself valid.

This page is general information about Vermont surviving spouse rights, not legal advice about any particular estate. Whether an election is still open, what a given estate's balance would produce, and whether a waiver signed years ago holds all turn on dates and documents specific to one file, so those questions belong with the Probate Division of the Superior Court for the decedent's county or a licensed Vermont attorney.

Sources:

It is not legal advice.

Information current as of August 4, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Vermont can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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