Can You Disinherit a Spouse in Vermont?

Short answer: not easily. Vermont has layered statutory protections that guarantee a surviving spouse a significant share of the estate regardless of what the will says.

Writing a will that leaves everything to your children and nothing to your spouse is technically possible. But your spouse can override it.

The Four Layers of Spousal Protection

Layer 1: Homestead Exemption

Under 27 V.S.A. § 105, the surviving spouse has a priority right to up to $125,000 of equity in the primary homestead. This takes precedence over all unsecured creditor claims and all testamentary distributions. The will cannot override it.

For many Vermont estates, the home is the largest asset. A $125,000 homestead exemption can represent a substantial portion of the estate before any other distribution occurs.

Layer 2: Personal Property Exemption

Under 14 V.S.A. § 312, the surviving spouse is entitled to receive all household furniture and furnishings from the decedent's household. If disputes arise about which items qualify, the Probate Division of the Superior Court decides — considering the length of the marriage, sentimental value, and the source of the property.

Layer 3: Family Allowance

Under 14 V.S.A. § 316, the probate court may order a reasonable maintenance allowance from the estate's funds for the surviving spouse and minor children during the administration period. For insolvent estates, this allowance is limited to eight months.

Layer 4: The Elective Share

This is the most powerful protection. Under 14 V.S.A. § 319, a surviving spouse can reject the will entirely and instead claim one-half of the net probate estate — calculated after the homestead exemption, personal property exemption, family allowance, creditor claims, and administrative expenses.

To exercise the elective share, the spouse must file a formal election with the probate court within four months after receiving notice of spousal rights, or within four months of the estate inventory filing, whichever is later.

What This Means in Practice

Suppose you write a will leaving your spouse $10,000 and the rest of your $500,000 estate to your children. Your spouse can:

1. Claim the $125,000 homestead exemption
2. Take the household furnishings
3. Receive a family allowance during administration
4. Waive the will and elect one-half of the remaining net probate estate

The result: your spouse receives far more than the $10,000 the will specified.

The Only Reliable Way to Limit a Spouse's Share

Prenuptial or postnuptial agreements are the primary mechanism for modifying or waiving spousal inheritance rights in Vermont. A properly executed agreement can reduce or eliminate the elective share, homestead exemption, and other statutory entitlements.

For the agreement to be enforceable, both parties must have had independent legal counsel (or knowingly waived it), full disclosure of assets, and no evidence of coercion or undue influence.

Non-Probate Assets and the Elective Share

The elective share applies only to the probate estate — assets that pass through the will or intestacy. Assets that transfer outside of probate may be beyond its reach:

• Life insurance proceeds paid to a named beneficiary (not the estate)
• Retirement accounts with designated beneficiaries
• Property held in joint tenancy with right of survivorship
• Assets in an irrevocable trust funded before death
• Property transferred via Enhanced Life Estate Deed (Lady Bird Deed)

This creates a planning strategy for some families: by moving significant assets into non-probate channels, the probate estate — and therefore the elective share base — shrinks. However, Vermont courts can scrutinize transfers made primarily to defeat the elective share, particularly those made close to death.

The Vermont Basic Estate Planning Kit explains how these spousal protections interact and helps you structure your estate plan to balance your wishes with Vermont's mandatory inheritance rules.

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