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BILL AS INTRODUCED 2007-2008

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H.445

Introduced by Representative Jewett of Ripton

Referred to Committee on

Date:

Subject:  Decedents’ estates and fiduciary relations

Statement of purpose:  This bill proposes to make various changes to the laws governing wills and estates.  The bill:

(1)  repeals various provisions that define the surviving spouse’s share of a decedent’s estate if the decedent died without a will that distinguish between real and personal property in the estate, and that distinguish between men and women;

(2)  specifies that a will that provides for the transfer of a decedent’s probate estate to the surviving spouse is revoked upon divorce or annulment of a marriage or by dissolution of a civil union;

(3)  increases the surviving spouse’s share of a decedent’s estate if the decedent dies without a will; and

(4)  makes various changes to the share of the surviving spouse if the spouse chooses to elect against the decedent’s will.

AN ACT RELATING TO WILLS AND ESTATES

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  REPEAL

14 V.S.A. §§ 401 (share of the surviving spouse), 403 (surviving spouse to receive household goods), 461 (interest of widow in real estate), and 474 (husband’s interest in lieu of curtesy) are repealed.

Sec. 2.  14 V.S.A. § 11 is amended to read:

§ 11.  HOW REVOKED

A will shall not be revoked, except by implication of law, otherwise than by the following:

(1)  divorce or annulment of a marriage, or dissolution of a civil union, if the will provides for the transfer of all or a portion of the decedent’s probate estate to the decedent’s former spouse;

(2)  some will, codicil, or other writing, executed as provided in case of wills; or

(3)  by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his the testator’s presence and by his the testator’s express direction.

Sec. 3.  14 V.S.A. § 402 is amended to read:

§ 402.  WAIVER OF WILL BY SURVIVING SPOUSE ELECTIVE SHARE

The same allowance shall be made when the surviving spouse waives the provision made for him or her in the will of the decedent, except in case the decedent dies without issue, when the surviving spouse may take estate as is provided in like cases of intestate estates, or, when the widow waives the jointure or pecuniary provision made for her in lieu of her interest provided by section 461 of this title, or, when either spouse waives the provisions of the law in case the decedent dies without issue, and shall be in lieu of his or her claim to the personal estate.  If the widow was not the first wife of the decedent, and he does not leave issue by her, and an agreement was entered into between them previous to their marriage, this provision shall be subject to the exception in relation to the allowance of such third interest to the widow in such case.

(a)  For the purposes of this section:

(1)  “Augmented estate” means the sum of the values of all property, whether real or personal; movable or immovable, tangible or intangible, wherever situated, that constitute the decedent’s net probate estate, the decedent’s nonprobate transfers to others, the decedent’s nonprobate transfers to the surviving spouse, and the surviving spouse’s property and nonprobate transfers to others.

(2)  “Decedent’s nonprobate transfers to others” means property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent’s death.

(3)  “Decedent’s nonprobate transfers to the surviving spouse” means property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, excluding property passing to the surviving spouse under the federal Social Security system.

(4)  “Net probate estate” means the value of the decedent’s probate estate, reduced by funeral and administration expenses, homestead allowance, family allowances, exempt property, and enforceable claims.

(5)  “Surviving spouse’s property and nonprobate transfers to others” means:

(A)  Property that was owned by the decedent’s surviving spouse at the decedent’s death, including:

(i)  The surviving spouse’s fractional interest in property held in tenancy in the entirety or in joint tenancy with the right of survivorship.

(ii)  The surviving spouse’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship.

(iii)  Property that passed to the surviving spouse by reason of the decedent’s death, but not including the spouse’s right to homestead allowance, family allowance, exempt property, or payments under the federal Social Security system.

(B)  Property that would have been included in the surviving spouse’s nonprobate transfers to others, other than the spouse’s fractional and ownership interests included under subdivision (5)(A)(i) or (ii) of this subsection, had the spouse been the decedent.

(b)  Elective share amount.  The surviving spouse of a decedent has a right of election, under the limitations and conditions stated in this section, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule.  If the decedent and the surviving spouse were married to each other:

(1)  Less than one year, the elective share percentage is the supplemental amount only, determined pursuant to subsection (c) of this section.

(2)  More than one year but fewer than two years, the elective share percentage is three percent of the augmented estate.

(3)  More than two years but fewer than three years, the elective share percentage is six percent of the augmented estate.

(4)  More than three years but fewer than four years, the share percentage is nine percent of the augmented estate.

(5)  More than four years but fewer than five years, the share percentage is 12 percent of the augmented estate.

(6)  More than five years but fewer than six years, the share percentage is 15 percent of the augmented estate.

(7)  More than six years but fewer than seven years, the share percentage is 18 percent of the augmented estate.

(8)  More than seven years but fewer than eight years, the share percentage is 21 percent of the augmented estate.

(9)  More than eight years but fewer than nine years, the share percentage is 24 percent of the augmented estate.

(10)  More than nine years but fewer than 10 years, the share percentage is 27 percent of the augmented estate.

(11)  More than 10 years but fewer than 11 years, the share percentage is 30 percent of the augmented estate.

(12)  More than 11 years but fewer than 12 years, the share percentage is 34 percent of the augmented estate.

(13)  More than 12 years but fewer than 13 years, the share percentage is 38 percent of the augmented estate.

(14)  More than 13 years but fewer than 14 years, the share percentage is 42 percent of the augmented estate.

(15)  More than 14 years but fewer than 15 years, the share percentage is 46 percent of the augmented estate.

(16)  Fifteen years or more, the share percentage is 50 percent of the augmented estate.

(c)  If the sum of the surviving spouse’s property and nonprobate transfers to others, the decedent’s net probate estate, and that part of the elective share amount payable from the decedent’s probate estate and nonprobate transfers to others is less than $50,000.00, the surviving spouse is entitled to a supplemental elective share amount equal to $50,000.00, minus the sum of the amounts described in this subsection. The supplemental elective-share amount is payable from the decedent’s probate estate and from recipients of the decedent’s nonprobate transfers to others in the following order of priority:

(1)  Amounts included in the decedent’s probate estate and in the decedent’s nonprobate transfers to others.  The decedent’s probate estate and that portion of the decedent’s nonprobate transfers to others are applied so that liability for the unsatisfied balance of the elective share amount or for the supplemental elective share amount is equitably apportioned among the recipients of the decedent’s probate estate and of that portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.

(2)  Amounts equitably apportioned among the recipients of the remaining portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.

(d)  If the surviving spouse exercises the right of election, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.


Sec. 4.  14 V.S.A. § 551 is amended to read:

§ 551.  GENERAL RULES OF DESCENT

The real and personal estate of a decedent, not devised nor bequeathed and not otherwise appropriated and distributed in pursuance of law, shall descend in the following manner:

(1)  In equal shares to the children of such decedent or the legal representatives of deceased children;

(2)  If the decedent is married and leaves no issue and the surviving spouse does not elect to take a third in value of the real estate of which the decedent dies seised in his or her own right, or waives the provisions of the will of such decedent, such spouse shall be entitled to the whole of the decedent’s estate forever, if it does not exceed $25,000.00, but if it exceeds that sum, then such spouse shall be entitled to $25,000.00 and half the remainder.  The remainder of such estate shall descend as the whole would if such spouse did not survive. If the decedent has no kindred who may inherit the estate, such spouse shall be entitled to the whole of such estate;

(3)  If the decedent does not leave issue nor surviving spouse, the estate shall descend in equal shares to the father and mother of such decedent. If the mother is not living and the father survives, the estate shall descend to the father. If the father is not living and the mother survives, the estate shall descend to the mother;

(4)  If the decedent does not leave issue, nor surviving spouse, nor father, nor mother, the estate shall descend in equal shares to the brothers and sisters of such decedent, and to the legal representatives of deceased brothers and sisters;

(a)  The intestate share of a decedent’s surviving spouse is:

(1)  The entire intestate estate if:

(A)  no descendant or parent of the decedent survives the decedent; or

(B)  all of the descendant’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.

(2)  The first $200,000.00, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.

(3)  The first $150,000.00 plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse, and the surviving spouse has one or more surviving descendants who are not descendants of the decedent.

(4)  The first $100,000.00 plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

(b)  Any part of the intestate estate not passing to the decedent’s surviving spouse under subsection (a) of this section, or the entire intestate estate if there is no surviving spouse, passes to the individuals designated below in the following order:

(1)  To the decedent’s descendants by representation.

(2)  If there is no surviving descendant, to the decedent’s parents or either of them by representation.

(5)(3)  If none of the kindred above-named survives the decedent, the estate shall descend in equal shares to the next of kin in equal degree; but a person shall not be entitled, by right of representation, to the share of such next of kin who has died.

(6)(c)  Notwithstanding the foregoing rules or provisions otherwise made in any case where a person is entitled to inherit, including a devisee or legatee under the last will of a decedent, such person’s share in the decedent’s estate shall be forfeited and shall pass to the remaining heirs of the decedent if such person stands convicted in any court of the United States or of any of the individual states of the United States of intentionally and unlawfully killing the decedent. In any proceedings to contest the right of a person to inherit, the record of such person’s conviction of intentionally and unlawfully killing the decedent shall be admissible evidence and may be taken as sufficient proof that such person did intentionally kill the decedent.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us