Vermont Bar Journal
Changes to Vermont's Probate Law: Increasing the Surviving Spouse's Share and Other Measures
THE VERMONT BAR JOURNALVolume 35, No. 2Summer 2009 Changes to Vermont's Probate Law: Increasing the Surviving Spouse's Share and Other MeasuresBy Stephanie J. Willbanks, Esq., and Jonathan D. Secrest, Esq.More than two hundred years ago-in 1787 to be precise-Vermont enacted an intestacy statute as well as dower and curtesy provisions that have changed very little over time.(fn1) In 2009, the Vermont legislature finally adopted significant revisions to these statutory sections.(fn2)The new provisions increase the share of the surviving spouse, both the intestate share and the elective share (a surviving spouse has long been able to take a statutory minimum share if the share provided in a will is inadequate). These changes more closely match the average decedent's probable intent in intestacy and increase a spouse's protection from disinheritance by will. The changes also remove long-standing ambiguities and confusion in our state's probate laws.
Under prior law, the surviving spouse's share, both the intestate share and the elective share, depended on the nature of the property-real or personal-and the number of surviving descendants.(fn3) If the decedent left a surviving spouse and collateral kindred but no descendants, it was anyone's guess how sections 401, 461, and 551(2) were to be applied.(fn4)Moreover, the surviving spouse was entitled to the household furnishings only if the decedent left no issue.(fn5)
S.26 increases the surviving spouse's share significantly if the decedent dies intestate. The primary impetus for S.26 was the concern among legislators that a surviving spouse was not entitled to all of an intestate decedent's probate estate if the decedent had any descendants or any collateral kindred. Surprisingly, section 551(2) had allowed any kindred, even to the far reaches of the table of consanguinity, to share the intestate decedent's property with the surviving spouse.(fn6) In response to requests from the legislature, the Probate and Trust Section of the Vermont Bar Association,(fn7)working in large measure from recommendations made by the Probate Judges' Study Committee of 2004, proposed the various changes that were incorporated into the law.
Surviving Spouse's Share
Section 311(fn8) of the new law gives the surviving spouse the decedent's entire probate estate if either (1) all of the decedent's descendants are also the descendants of the surviving spouse or (2) the decedent had no surviving descendants. It also abolishes the distinction between real and personal property. The surviving spouse is now entitled to the same share of the personal property as of the real property. Example 1 Donald and Sally were married and had three children-Ann, Bert, and Carol. They owned the family home as tenants by the entirety. Donald died without a will owning other real property worth $300,000 and personal property worth $150,000. Under prior law, Sally would have received only one-third of the personal property (section 401) and one-third of Sam's real property (section 461), in addition to the house. The rest of the property would have passed to their children. Under new section 311, Sally would receive all of the real and personal property, and the children would receive nothing. Example 2 Doris and Sam were married and had no children. They owned the family home as tenants by the entirety. Doris owned other real property valued at $525,000. She died without a will, survived by Sam and two third cousins. Under prior law (section 551(2)), Sam would have received $25,000 plus half the remaining value of Doris's real property for a total of $275,000 in addition to the house. Doris's two third cousins would have received the other $250,000 of her property. Under new section 311, Sam would receive all of the property, and the third cousins would receive nothing.
Section 311 also provides that if the decedent leaves any descendants who are not descendants of the surviving spouse, the surviving spouse will be entitled to only fifty percent of the probate estate. Example 3 Daniel and Sarah were married. Daniel has two children, Ellen and Frank, from a prior marriage. Daniel and Sarah have one child, Gary. They own the family home as tenants by the entirety. Daniel owns other real property worth $600,000. Under prior law (section 461), Sarah would have received one-third of the real property-that is , $200,000 plus the house. Under section 311, Sarah would be entitled to one-half of that property, or $300,000 plus the house.