Vt. Sup. Ct. Promulgation Order of Mar. 2, 2026: VRPP13

STATE OF VERMONT

VERMONT SUPREME COURT

MARCH TERM, 2026

Order Promulgating Amendments to Rule 13 of the Vermont Rules of Probate Procedure

Pursuant to the Vermont Constitution, Chapter II, § 37, and 12 V.S.A. § 1, it is hereby ordered:

1. That Rule 13 of the Vermont Rules of Probate Procedure be amended as follows (deleted

matter struck through; new matter underlined):

RULE 13. ELECTIONS IN ESTATES RIGHTS AND ALLOWANCES FOR SURVIVING

SPOUSE AND MINOR CHILDREN

(a) Notice to surviving spouse. Within 30 days after an executor or administrator is appointed

the filing of the initial inventory, the court shall send by first class mail or otherwise cause to be

delivered deliver to the surviving spouse a notice informing the surviving spouse of the

following election and rights available as follows:

(1) The election to waive the provisions made for the spouse in the will and to take a share

of the decedent’s estate pursuant to 14 V.S.A. § 319. Household goods and furnishings. The

right to request that household goods and furnishings be awarded to the surviving spouse

pursuant to 14 V.S.A.§ 312, which right may be exercised at any time prior to the issuance of a

decree distributing any such furnishings and furniture.

(2) The right to have the homestead set out pursuant to 27 V.S.A. § 105. Support and

maintenance. The right to request an allowance for support and maintenance of the surviving

spouse pursuant to 14 V.S.A.§ 316, which right may be exercised at any time prior to the

issuance of a final decree of distribution provided, however, if the estate is insolvent, the

allowance cannot continue for more than eight months after the letters of administration have

been granted.

(3) The right to request that household goods and furnishings be awarded to the surviving

spouse pursuant to 14 V.S.A. § 312. Waiver of provisions in will. The election to waive the

provisions made for the spouse in the will and to take a share of the decedent’s estate pursuant to

14 V.S.A. § 319, which right may only be exercised within the four months following the later of

the date of the service of the notice or the date of the service of the inventory.

(4) The right to request an allowance for maintenance of the surviving spouse and minor

children, or either, pursuant to 14 V.S.A. § 316-318. Homestead. The right to have the

homestead set out pursuant to 27 V.S.A. § 105, which right may be exercised within four months

following the later of the date of service of the notice of election and rights or the date of the

service of the inventory.

(b) Elections Initial exercise of election rights and allowances by the spouse. Unless the

time is extended by the court, the elections and rights specified in subdivisions (a)(1)-(2) shall be

made or asserted within 8 months after the will is proved or letters of administration are granted.

The elections shall be made on the official form contained in these rules. The court may schedule

a hearing, on the motion of a party or on its own motion, to determine the validity of any request

made pursuant to subdivision (a), and its effect on the distribution of the estate. Any party may

appear at the hearing and contest the validity or effect of any such request. the surviving spouse

shall file with the court the notice of exercise of election and rights as outlined in subdivision (a)

and serve a copy of such notice upon the interested persons. If the surviving spouse fails to do so

within the time frames outlined in paragraphs (a)(1)-(4), the failure(s) may be deemed by the

court as a waiver.

(c) Notice of rights to and exercise of rights by minor children. Within 30 days from the

date of filing of the initial inventory, the court shall send by first class mail or otherwise deliver

to the court-appointed guardian or the surviving parent of any minor children, a notice informing

the guardian or surviving parent of the following rights available to the children and the deadline

for exercise of the rights:

(1) The right to request an allowance for support and maintenance of the minor children out

of the personal property of the estate, the income from the personal property, and the income

from the real property pursuant to 14 V.S.A. § 316, which right may be exercised at any time

prior to the issuance of a final decree of distribution provided however, if the estate is insolvent,

the allowance cannot continue for more than eight months after the letters of administration have

been granted.

(2) The right to request an allowance for maintenance of the minor children until they reach

the age of eighteen years, which allowance shall be made either before payment to creditors

pursuant 14 V.S.A. § 317 or after payment to creditors pursuant to 14 V.S.A. § 318 but always

before any distribution of the estate to heirs or beneficiaries by will.

(d) Exercise of rights by minor children. The guardian or surviving parent shall file the

notice of exercise of rights with the court and serve a copy of the notice upon the interested

persons.

(e) Supplemental notice to and election by surviving spouse. Within 30 days from the date

of the filing of a supplemental or amended inventory, the court shall send by first class mail or

otherwise deliver to the surviving spouse a notice informing the surviving spouse of the right

given by 14 V.S.A. § 319(f) to waive the provisions in the will and to take a share in the

previously omitted property or, if the property had been included in the prior inventory, in any

increase in the value of such property. Unless extended by the court, within 30 days of the date

of service of the court’s notice, the surviving spouse may file a supplemental election with the

court and serve a copy of the election upon the interested persons. If the surviving spouse fails to

do so, the failure will be deemed as a waiver of said right.

(f) Hearing on election. Unless otherwise extended by the court, any interested party may

request a hearing on the validity of any election within 30 days from the date of service of the

notice of election upon said interested party. On its own initiative, the court may also schedule a

hearing on the validity of any request within 30 days from the date of filing of the notice of

election. If no request is filed, the election shall be deemed valid.

Reporter's Notes—2026 Amendment

The rule is reorganized to better reflect the statutory election rights

and allowances available to a surviving spouse and minor children in

accordance with the amendments made to the relevant statutes in

2017. The rights of the surviving spouse and any minor children are

now addressed separately and timeframes for the exercise of the

rights are identified.

As the homestead interest of the surviving spouse found in Title 27

differs from the election and rights of the surviving spouse found in

Title 14, both the title of the rule and the delineation of the rule have

been modified to reflect the distinction. The Vermont Supreme Court

explained the purpose of the homestead interest, defined in 27

V.S.A. § 105, in In re Cook’s Estate, 117 Vt. 336, 91 A.2d 683

(1952). The dated nature of this 1952 decision is reflected in the

presumption that the right exists to protect the surviving “wife.” Id.

The Cook court determined that “[t]he wife’s right in the homestead

premises is inchoate during the husband’s lifetime and ripens into an

absolute right upon his decease. . . . It does not depend, however, on

the contingency of being set out.” Id. at 340, 91 A.2d at 685.

However, the statute directs the court “to set out the homestead.” 27

V.S.A. § 105.

Unlike the election and rights identified in subchapter 2 of Title 14,

the homestead interest is not subject to a statutory deadline for its

exercise. The homestead statute also does not provide for whether

the right can be waived and does not address whether the surviving

spouse receives the value of any increased value in the homestead

during the pendency of the estate. Waiver of the homestead right

prior to the death of a spouse is addressed in 14 V.S.A. § 323. These

omissions have the potential to cloud the title on the homestead and

to delay the efficient and orderly administration of the estate.

Consequently, the rule now requires the spouse to exercise the

right “within four months following the later of the date of service of

the notice of election and rights or the date of service of the

inventory.” In the absence of legislative changes to the homestead

provisions, this timeframe will provide clarity and consistency.

2. That this amendment is prescribed and promulgated effective July 1, 2026. The Reporter’s

Notes are advisory.

3. That the Chief Justice is authorized to report this rule to the General Assembly in accordance

with the provisions of 12 V.S.A. § 1, as amended.

Dated in Chambers at Montpelier, Vermont, this 2nd day of March, 2026.

____________________________________

Paul L. Reiber, Chief Justice

_____________________________________

Harold E. Eaton, Jr., Associate Justice

_____________________________________

Nancy J. Waples, Associate Justice

Signed by the Vermont Supreme Court _________________________________________

Christina E. Nolan, Associate Justice

______________________________________

Michael P. Drescher, Associate Justice