Vermont Elective Share: Can You Disinherit a Spouse?

No. Under Vermont law, you cannot fully disinherit a surviving spouse through a will — and understanding exactly how this protection works is essential for anyone in a blended family, second marriage, or complicated marital situation.

Vermont provides surviving spouses with a layered stack of statutory protections that override whatever the will says. Even if a will explicitly leaves a spouse nothing, they can elect against the will and claim a substantial share of the estate.

The Four Layers of Spousal Protection

Vermont's protections apply in a cumulative, priority order:

1. Homestead Exemption ($125,000)

Under 27 V.S.A. § 105, the surviving spouse has a priority right to up to $125,000 of equity in the decedent's primary homestead. This takes precedence over all unsecured creditor claims and all testamentary or intestate distributions. Even if every penny of the estate is owed to creditors, the surviving spouse keeps up to $125,000 in home equity.

2. Personal Property Exemption

Under 14 V.S.A. § 312, the surviving spouse is entitled to receive all household furniture and furnishings in the decedent's household. If there's a dispute about what qualifies, the probate court decides — considering factors like the length of the marriage, sentimental value, and who originally acquired the property.

3. Family Allowance

Under 14 V.S.A. § 316, the probate court can order a reasonable allowance from estate funds for the maintenance of the surviving spouse and minor children during the administration period. If the estate is insolvent, the allowance cannot extend beyond eight months.

4. The Elective Share (One-Half)

This is the most powerful protection. Under 14 V.S.A. § 319, the surviving spouse can waive the entire will and instead elect to receive one-half of the decedent's net probate estate. The net probate estate is what remains after the homestead exemption, personal property exemption, family allowance, debts, and administrative expenses are paid.

To exercise this right, 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 filing of the estate inventory, whichever deadline expires later.

What the Elective Share Covers (and Doesn't)

The elective share applies only to assets that pass through probate. This is a critical distinction. Assets that transfer outside of probate — through joint tenancy, beneficiary designations, Enhanced Life Estate Deeds, or living trusts — are generally not part of the probate estate and therefore not subject to the elective share calculation.

This creates both an opportunity and a risk:

• For someone trying to protect children from a first marriage: transferring assets into non-probate channels (like an Enhanced Life Estate Deed or irrevocable trust) before death can limit the probate estate and therefore limit what the surviving spouse can claim through the elective share
• For a surviving spouse: if the deceased spouse moved most assets out of probate before death, the elective share may apply to a very small pool of assets

Vermont does not use an "augmented estate" concept the way some states do (under the Uniform Probate Code). The elective share here is strictly calculated against the probate estate, not the total value of all assets the decedent controlled.

The Only Way to Waive the Elective Share

A valid prenuptial or postnuptial agreement is the only reliable way for a spouse to waive their elective share rights. The agreement must be:

• In writing
• Signed voluntarily by both parties
• Based on fair and reasonable disclosure of each party's financial situation

Without such an agreement, the surviving spouse retains the right to elect against any will — no matter how clearly the will states the intention to exclude them.

Practical Implications for Estate Planning

If you're in a second marriage and want to ensure children from your first marriage inherit specific assets, relying on a will alone is risky. Your surviving spouse can reject the will and take half of whatever passes through probate.

The more effective approach is to minimize the probate estate:

• Transfer real property via an Enhanced Life Estate Deed directly to your children
• Name your children as beneficiaries on retirement accounts and life insurance
• Use Payable on Death designations on bank accounts
• Consider an irrevocable trust for high-value assets

These non-probate transfers pass directly to your named beneficiaries regardless of the elective share.

The Vermont Basic Estate Planning Kit explains how to coordinate your will with non-probate transfers to protect both your surviving spouse's legal rights and your children's inheritance — with checklists for every step.

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