Short answer
Yes. If a divorce is not final under Vermont law, the person remains the legal spouse. As the surviving spouse they generally retain statutory rights in the decedent’s estate — including inheritance under intestacy, certain allowances from the probate estate, and the right to challenge distributions — unless they validly waived those rights before death.
How Vermont law treats an unfinalized divorce
Under Vermont law, a marriage continues until a final decree of divorce or annulment is entered by a court. That means a spouse who is separated but whose divorce never became final is still legally married when the other spouse dies. Because the marriage still exists, the surviving spouse normally qualifies as an heir and as the spouse for any probate or post‑death succession claims.
Primary sources for Vermont rules on probate and marital status are the Vermont statutes governing probate, trusts, and fiduciaries and the statutes on domestic relations. See the Vermont statutes on probate and estates: Title 14 — Probate, Trusts, and Fiduciaries, and on divorce and marital status: Title 15 — Domestic Relations.
What specific rights an un-finalized spouse may have
- Intestate share. If the decedent left no valid will, the surviving spouse inherits according to Vermont’s intestacy rules. A legally married surviving spouse is first in line to inherit.
- Spousal allowances and family support. Probate law commonly provides the surviving spouse an exempt property allowance and a family allowance for the support of the spouse and minor children during administration of the estate. Those protections generally apply to a spouse who is legally married at the time of death.
- Elective share or statutory protections. Some states give spouses the ability to elect against a will to receive a statutory share. If Vermont law provides an elective share or similar statutory protection, a spouse whose divorce was not final may be able to assert that right. (See Title 14 statutes on probate procedures and allowances.)
- Beneficiary designations and wills. A will or beneficiary form that names a spouse remains effective until a final divorce decree, unless the testator took other steps (for example, a new will or beneficiary change). Some states automatically revoke will provisions for an ex‑spouse upon divorce, but that revocation only applies after divorce is final; if the divorce is not final when the decedent dies, those revocation rules do not apply.
Common exceptions and issues to check
- Waivers and agreements. A valid prenuptial or postnuptial agreement or a signed separation agreement can waive inheritance rights or elective‑share rights. The court will enforce a valid waiver even if the divorce is incomplete, so check for signed written waivers.
- Pending divorce orders. Temporary orders in a pending divorce sometimes address property rights. Those orders may affect how property is characterized or controlled during the case. However, temporary orders generally do not negate a spouse’s probate rights after death unless they explicitly and lawfully do so.
- Remarriage, annulment, or legal separation. Legal separation (if entered as a separate court order) is different from divorce; only a final divorce or annulment ends the marriage for purposes of probate inheritance. Remarriage of the surviving spouse after the decedent’s death does not affect that person’s status at the time of death.
- Out‑of‑state filings. If the divorce proceeding started in another state, whether the marriage was legally terminated depends on whether a valid final decree issued under that jurisdiction’s law. Courts will examine where the divorce was filed and whether the court had jurisdiction to enter a final decree.
Practical steps for executors, family members, and the estranged spouse
Executor or personal representative:
- Confirm marital status with the clerk of the divorce court. A final decree is a public court record.
- Notify all likely heirs and follow probate notice rules in Title 14. Preserve estate assets and avoid making distributions until heirs’ claims are resolved.
- If a surviving spouse appears and claims rights, consider mediation or prompt petition to probate court to determine entitlements.
Estranged spouse who believes they have rights:
- Gather documents: marriage certificate, any separation or property agreements, the decedent’s will and beneficiary designations, and divorce filings (including any temporary or final orders).
- File a claim in the probate matter or contact the personal representative promptly. There are strict deadlines for contesting a will or asserting statutory claims.
- If a waiver or agreement exists, have it reviewed. If no waiver exists, you can assert statutory spouse rights and request support allowances during probate.
When to consult an attorney
Disputes over surviving‑spouse rights can turn on technical facts: whether the divorce was legally filed and prosecuted, whether any waivers exist, and what the decedent’s estate plan says. If the estate is substantial, if a will appears to disinherit the spouse, or if there is a signed agreement that may waive rights, consult a Vermont probate attorney quickly. An attorney can help you file the correct probate pleadings, protect time‑sensitive rights, and advise about settlement or litigation.
Helpful hints
- Do not assume separation equals termination of marriage. Only a final court decree (or annulment) ends marital status.
- Ask the probate court clerk whether a probate case exists and how to file a creditor’s or heir’s claim.
- Look for written waivers (prenup, postnup, separation agreement). A valid written waiver often controls distribution.
- Collect proof of marriage, residence, and any financial support arrangements—these evidence matters in probate disputes.
- Act quickly. Probate timelines and notice periods are strict; delays can forfeit rights.
- If possible, use a lawyer experienced in Vermont probate and family law. They can often resolve claims faster and at lower cost than prolonged litigation.
Disclaimer: This article is educational only and does not constitute legal advice. Laws change and every case depends on its facts. For legal advice about a specific situation in Vermont, consult a lawyer licensed in Vermont.