Surviving Spouse Rights in Vermont: Homestead, Elective Share, and Inheritance

A surviving spouse in Vermont has substantial legal protections — but almost none of them are automatic. Claiming them requires knowing they exist, understanding the deadlines, and taking specific legal action within the active probate proceeding. Vermont law will not protect a surviving spouse who doesn't know to ask.

Here is what you are entitled to and what you must do to secure it.

The Homestead Allowance: $125,000 Before Creditors

Vermont law entitles every surviving spouse to a homestead allowance of up to $125,000 from the decedent's probate estate. This is not a tax exemption or a property classification — it is a direct monetary claim against estate assets that ranks ahead of most unsecured creditors.

The homestead allowance means that if the decedent's estate has $200,000 in assets, the surviving spouse is entitled to claim $125,000 of that before creditors divide the rest. If the estate is smaller than $125,000, the surviving spouse takes the entire estate under the homestead allowance before any other distributions happen.

This right exists regardless of what the decedent's will says. Even a will that disinherits the spouse cannot eliminate the homestead allowance — it is a statutory floor, not a contractual provision. The surviving spouse must formally assert this right during the active probate proceeding. Once the estate is distributed and closed, recovering assets to satisfy it becomes legally difficult.

Note that this homestead allowance is a different concept from the real estate homestead classification used for Vermont property tax purposes. The two sometimes intersect — for example, when the estate's primary asset is the family home — but they operate under entirely different statutory frameworks.

The Elective Share: The Right to Reject the Will

Vermont law gives a surviving spouse the right to reject the provisions of the decedent's will and claim a forced statutory share instead. This is called the elective share. Under Vermont law, the surviving spouse may elect to take one-half of the decedent's estate, regardless of what the will directs.

The election must be made within four months of the date the surviving spouse receives formal service of notice of their rights or the estate inventory, whichever is later. After that window closes, the surviving spouse is bound by the will's terms.

When does exercising the elective share make sense? Consider a situation where a decedent's will leaves the bulk of the estate to children from a prior marriage and provides only a modest bequest to the surviving spouse. If the elective share — one-half of the total estate — is worth significantly more than the will's bequest, the surviving spouse should seriously consider electing against the will. A Vermont estate attorney can run the numbers quickly once the inventory is filed.

The decision is not automatically right or wrong. Exercising the elective share may create conflict with other beneficiaries, and the family dynamics may matter. But the legal right is absolute, and a surviving spouse should never waive it without understanding the financial trade-off.

What Happens When There Is No Will: Intestate Inheritance

If the decedent died without a valid will, Vermont's intestate succession statutes (Title 14, Chapter 42) determine how the estate is distributed. The surviving spouse's share under intestacy depends on whether the decedent left surviving descendants.

If the decedent left no surviving descendants: The surviving spouse inherits the entire estate.

If the decedent left descendants who are also descendants of the surviving spouse: The surviving spouse inherits one-half of the estate. The other half is divided among the descendants according to the statutory rules.

If the decedent left descendants from a prior relationship (not children of the surviving spouse): The surviving spouse again takes one-half, with the remaining half distributed to the decedent's descendants. In blended family situations, this can result in the surviving spouse sharing assets with stepchildren they may not have a close relationship with.

Vermont does not give the surviving spouse priority over children in all scenarios the way some states do. If you are in a blended family situation with significant assets at stake, the division may feel inequitable. Understanding the intestate rules in advance — and having an estate plan that reflects your actual wishes — is the only way to prevent this outcome.

Joint Tenancy Property: What Does and Doesn't Transfer Automatically

Many Vermont couples hold real estate as joint tenants with right of survivorship. When one joint tenant dies, the surviving joint tenant owns the entire property automatically — no probate required for that asset.

However, "automatic" does not mean "effortless." The surviving spouse must still record a certified copy of the death certificate in the local town land records to formally extinguish the decedent's interest in the chain of title. Vermont town clerks charge $15 per page for recording. This is a mandatory administrative step — without it, the title remains clouded and the property cannot be sold, refinanced, or transferred.

Property held as tenants in common — where each owner holds a distinct, proportional share — does not transfer automatically. The decedent's share passes through the probate estate, subject to all the rules discussed above. If you are unsure how a property is titled, the deed on file with the local town clerk specifies the ownership form.

Vehicles: The Surviving Spouse Exception

When a vehicle is titled solely in the decedent's name without a Transfer on Death (TOD) beneficiary designation (Form VT-007), the surviving spouse can transfer it directly without probate through the Vermont DMV's Surviving Spouse Exception. This requires Form VD-119 and a death certificate. No Purchase and Use Tax applies.

This exception is limited in scope: if the surviving spouse attempts to transfer a third or subsequent vehicle using this exception, full fees apply. Plan accordingly if the decedent owned multiple vehicles.

Health Insurance Continuation for State Employee Survivors

Surviving spouses of Vermont State Employees' Retirement System (VSERS) or Vermont State Teachers' Retirement System (VSTRS) members may be eligible to continue group health insurance coverage through the state plan after the member's death. The key change: the surviving spouse typically transitions from contributing 20% of the premium cost to covering 100%, unless specific age or Medicare enrollment thresholds apply.

This can be a significant ongoing expense. Compare the cost of continuing state coverage against options available through Vermont Health Connect before automatically enrolling. Depending on the surviving spouse's age and health needs, the marketplace may offer comparable coverage at lower cost.

What Surviving Spouses Often Miss

The property tax claim withdrawal. If the decedent died before April 1 of the tax year, the estate cannot claim a Vermont Property Tax Credit for the deceased's homestead. If such a claim was filed and paid, the estate must repay it using Form HS-122W. However, if the surviving spouse holds a life estate interest and occupies the property as their principal residence, they can file the credit in their own right.

The DVHA Medicaid lien. If the decedent received long-term care Medicaid after age 55, the state has a right to recover those costs from the probate estate. The key protection: Vermont will not pursue recovery while a surviving spouse is living in the home. But if the surviving spouse moves out, enters a care facility, or dies, the DVHA lien becomes active. Planning around this requires understanding exactly what triggers the recovery clock to restart.

The retirement beneficiary form. Pension and retirement account beneficiary designations bypass probate entirely. If the surviving spouse is already named as the beneficiary on the decedent's VSERS or VSTRS account, the pension continuation is a matter of notifying the Retirement Office and submitting a notarized beneficiary form — it does not depend on the probate proceeding. Delay here costs real money: pension payments stop at the member's death and do not restart retroactively.

Vermont law gives surviving spouses meaningful protections, but they require active claiming. The Vermont Survivor Benefits Navigator provides the specific forms, timelines, and step-by-step instructions for asserting each of these rights — from filing the homestead allowance claim to recording joint tenancy deeds at the town clerk.

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