Spousal Elective Share Rights in a Probate Estate

elderly coupleIt is important for surviving spouses to be aware of their rights if their spouse should predecease them. Every state provides that surviving spouses receive benefits from the estate of the deceased spouse. The surviving spouse is protected through the doctrine of elective share.

An elective share is the right of the surviving spouse to waive the will of the decedent and take a portion of the deceased spouse’s probate estate equal to fifty (50%) percent. A surviving spouse must actively make a claim in the probate estate for an elective spousal share. An agreement between spouses in which each spouse waives their right to claim an elective share can be accomplished via a pre- or postnuptial agreement, with full disclosure of assets. The rights granted to a surviving spouse are not dependent upon anything other than the person being legally married to the decedent at the time of their death.

In Vermont a surviving spouse may waive the provisions provided to them under the deceased spouse’s will and, in lieu of those provisions, elect to take one-half (50%) of the balance of the probate estate, after the payment of claims and expenses.

When it comes to the rights of surviving spouses the rules are complicated and interconnected. Determining how they might apply in your specific case will require the assistance of a knowledgeable and experienced probate and estate planning attorney.

In Vermont, a surviving spouse has the following rights:

  1. to take an intestate share of the estate of the deceased spouse’s estate;
  2. to take an intestate share of the household goods;
  3. to take a vessel, snowmobile, or all-terrain vehicle;
  4. to receive a support allowance during the process of probating the estate;
  5. the right to an elective statutory share of the deceased person’s estate;
  6. the right to be appointed an executor (where there is a will) or administrator (where there is no will);
  7. the right to damages in wrongful death cases; and
  8. to receive a survivor’s right to a homestead interest, and to be protected from the debts of a deceased spouse.

To begin your estate planning process, please contact us at Aaron J. Goldberg, PLC.



“Used with permission 2016”


Loading Quotes...


Attorneys with Aaron J. Goldberg, PLC are members of the Vermont Bar Association and the National Academy of Elder Law Attorneys.