Vermont: Spousal Elective Share Requirements

Requirements one by one

The share is one-half of the probate balance

Vermont is not a general augmented-estate state. Under § 319(a), the spouse
waives the will and instead takes one-half of the probate-estate balance after
allowances, claims, and expenses. The statute does not scale the percentage by
marriage length or provide a separate valuation date.

The deductions come before the percentage. If the probate estate has a
$300,000 balance after the named payments, the statutory amount is $150,000.

A narrow anti-evasion rule can reach beyond probate

Section 321 does not sweep ordinary nonprobate property into an augmented
estate. It applies when a transfer during marriage or civil union was voluntary,
made without adequate consideration, designed to take effect at or after death,
and made primarily to defeat the survivor's intestate or elective share.

For a qualifying transfer, the court may reasonably increase the spouse's
probate share. If probate assets are insufficient, it may order other equitable
relief. The statute expressly leaves an enhanced life estate, or Ladybird, deed
unaffected.

The later-served document starts the ordinary clock

Section 319(e) requires the court to provide notice of the survivor's rights no
later than 30 days after the initial inventory is filed. Unless the court orders
otherwise, the written election is due four months after the later of service of
that notice or service of the inventory.

A later inventory or accounting that first reports property owned at death
creates a separate 30-day election period for that newly reported property,
measured from service of the filing. Section 319 states no withdrawal procedure.

A representative needs the right power

The spouse must be living when the election is made. A guardian may sign, as
may an agent or attorney-in-fact whose power expressly grants election authority
or grants property-management and disposition authority as broad as the
principal's own without expressly excluding the election. An agent may ask the
Probate Division to determine whether the broader language is sufficient.

Section 322 separately forfeits the estate share of a person who intentionally
and unlawfully kills the decedent.

The waiver statute supplies substantive safeguards

Section 323 permits a whole or partial waiver before or during marriage through
a written instrument signed by the waiving spouse. The statute presumes the
waiver valid, but identifies challenges based on voluntariness, fraud, duress,
coercion, unconscionability when signed or after a qualifying material change,
inadequate financial disclosure, and lack of meaningful access to independent
counsel.

The section also allows a sufficiently authorized guardian, agent, or
attorney-in-fact to sign a waiver for the spouse. Its authority rules parallel
the election rules.

Some survivor benefits remain separate from the calculation

Section 319 calculates the share only after allowances are paid. Section 316
authorizes a support-and-maintenance allowance during administration, subject to
its duration rules, and permits the court to give it priority over estate debts.

Section 312 separately lets the spouse move for household furnishings and says
assigned goods are additional to the spouse's distributive share. Section 323
allows a spouse to waive homestead and other allowances separately; § 319 does
not say that making the election itself waives those rights.

What trips people up

• The base is probate property, but the anti-evasion rule matters. A
  death-effective transfer is not automatically included; § 321 requires its
  specific consideration, timing, and primary-purpose conditions.
• The deadline does not run from death or probate admission. It ordinarily
  runs from the later service of the rights notice or inventory.
• Newly disclosed property has its own short period. A later inventory or
  accounting can trigger a 30-day election for that property.
• The will is waived. This is a substitute for the will provisions, not an
  additional minimum layered on top of them.

Common questions

Does Vermont count a revocable trust automatically? No. Section 319 uses
the probate estate. Section 321 supplies a targeted remedy only when its
anti-evasion conditions are met.

Can an agent make the election? Yes, if the power of attorney expressly
grants election authority or meets § 319(b)'s broad property-authority test
without excluding the election.

Are household furnishings part of the one-half calculation? Section 312
says furnishings assigned on the spouse's motion are additional to the
distributive share.

Statutes and sources

• 14 V.S.A. § 319 — share, living-spouse and representative rules, notice,
  ordinary deadline, and newly disclosed property. Official Vermont chapter
  text (accessed
  2026-08-02).
• 14 V.S.A. § 321 — qualifying death-effective transfers, probate-share
  increase, equitable relief, and enhanced-life-estate-deed exception. Official
  Vermont chapter
  text (accessed
  2026-08-02).
• 14 V.S.A. § 322 — forfeiture for intentional unlawful killing. Official
  Vermont chapter
  text (accessed
  2026-08-02).
• 14 V.S.A. § 323 — written waiver, validity challenges, and representative
  authority. Official Vermont chapter
  text (accessed
  2026-08-02).
• 14 V.S.A. § 312 — household furnishings additional to the distributive
  share. Official Vermont chapter
  text (accessed
  2026-08-02).
• 14 V.S.A. § 316 — family support-and-maintenance allowance during
  administration. Official Vermont chapter
  text (accessed
  2026-08-02).