Vermont Marriage Law: A Legal Guide for Couples & Life Partners
Marriage is a significant life event that intertwines not just two lives, but also their legal and financial realities. This guide provides an overview of key legal and practical considerations for couples in a committed relationship, whether they are getting married, navigating a marriage, or planning for the future.
The Legal Framework of Marriage
Marriage is more than a ceremony; it is a legal contract that changes your rights and obligations. It affects how your assets are handled, your ability to make decisions for your partner, and what happens in the event of death or divorce.
Marital and Separate Property
Vermont recognizes two types of property within a marriage: "marital property" and "separate property."
Marital Property: This is generally any property acquired by either spouse during the marriage, regardless of whose name is on the title. It includes wages, bank accounts, real estate, and retirement funds.
Separate Property: This is property that a spouse owned before the marriage or received as an individual gift or inheritance during the marriage.
Vermont's law is unique because a court can consider and divide both marital and separate property in a divorce. While separate property is generally treated as distinct, it can become part of the marital estate if it is "commingled" with marital assets—for example, if an inheritance is used to pay down a mortgage on the family home.
The Impact of Divorce
When a couple divorces and cannot agree on how to divide their property, a judge will step in to make a decision. Unlike "community property" states that aim for a 50/50 split, Vermont is an "equitable distribution" state. This means a judge will divide property based on what is fair, not necessarily what is equal.
A judge will consider a list of factors outlined in Vermont statute 15 V.S.A. § 751. These factors ensure the division is tailored to the unique circumstances of the marriage:
Length of the marriage and the age and health of each spouse.
Each spouse's occupation, income, and earning capacity.
The value of all property, liabilities, and needs of each party.
The contributions of each spouse to the marital estate, including non-monetary contributions as a homemaker or caregiver.
The party through whom the property was acquired.
Whether the property settlement is in lieu of or in addition to spousal maintenance (alimony).
The desirability of awarding the family home to the spouse who has custody of the children.
The respective merits of the parties. Vermont is a notable exception to many "no-fault" states because a court can consider fault, such as abuse, adultery, or neglect, when deciding on the property division.
Because a judge has so much discretion, most couples in Vermont try to reach a mutual agreement, or stipulation, to avoid a costly and unpredictable court battle.
Death of a Spouse: Elective Share
Vermont law has protections to ensure a surviving spouse is not left without an inheritance, even if the deceased spouse's will attempts to disinherit them. This is known as the "elective share."
Intestacy (No Will): If a person dies without a will, the surviving spouse's share is determined by intestacy laws. The surviving spouse will generally receive the entire estate if there are no children, or half if there are surviving children who are not descendants of the surviving spouse.
With a Will: If a deceased spouse's will leaves the surviving spouse less than what they are entitled to by law, the surviving spouse can choose to waive the will and take their elective share instead. In Vermont, this share is one-half of the balance of the probate estate after the payment of allowances, claims, and expenses.
For example, if a husband dies with a $500,000 probate estate and his will leaves his wife only $50,000, she can choose to waive the will and instead take her elective share. In this case, her share would be $250,000 (one-half of the estate), plus any applicable allowances.
This right can, however, be waived through a valid prenuptial agreement.
Prenuptial & Postnuptial Agreements
Prenuptial Agreements are contracts signed before marriage. They define how property and spousal support will be handled in a divorce. Postnuptial Agreements are similar but are signed after marriage.
For a prenuptial or postnuptial agreement to be enforceable, it must be in writing, signed voluntarily, and based on a full and fair financial disclosure by both parties. The terms must also be equitable.
It must be in writing and signed.
It must be voluntary and free, with no coercion or duress.
There must be fair and reasonable financial disclosure of all assets, debts, and income.
The terms must be equitable and not "unconscionable."
Postnuptial agreements are subject to even greater scrutiny by a court than prenups. This is because married spouses are in a confidential relationship, which can create a risk of duress or undue influence.
The Legal Benefits of Marriage in Vermont
Beyond the emotional commitment, marriage in Vermont provides a wide range of legal rights and protections that unmarried partners do not automatically receive. These benefits primarily revolve around property, finance, medical care, and family matters.
Access and Decision-Making
Medical and Hospital Visitation: A married spouse has a legally protected right to visit their partner in a hospital and some access their medical records. Unmarried partners can be denied this right unless they have an Advance Directive for Health Care (ADHC) and a HIPAA Release in place.
Beneficiary and Inheritance Rights
Intestacy Rights: If a person dies in Vermont without a will, the surviving spouse is legally entitled to a portion of the estate through intestacy laws. If there are no children, the surviving spouse inherits the entire estate. If there are children from a previous relationship, the surviving spouse inherits half of the estate.
Elective Share: Vermont law provides a powerful protection for a surviving spouse called the "elective share." This allows a surviving spouse to claim a portion of the deceased spouse's estate (one-half of the probate estate) even if the will leaves them less or nothing at all. This right is not available to unmarried partners.
Social Security: A married spouse may be eligible for Social Security benefits based on their spouse's work record. A surviving spouse can also inherit their deceased spouse's retirement accounts with favorable tax treatment.
Financial and Tax Benefits
Tax Benefits: Married couples can file a joint federal and state tax return, which may result in a lower tax liability than filing separately. Spouses can also transfer an unlimited amount of assets to each other free of gift or estate tax.
Medicaid and Nursing Home Benefits: When one spouse needs long-term care covered by Medicaid, the "community spouse" (the one not receiving care) is protected from impoverishment. The "spousal impoverishment" rule allows the community spouse to retain a certain level of assets and a portion of the combined income. This is not a benefit available to unmarried partners.
Property Ownership: Marriage makes it easier to hold property together as "tenants by the entirety." This form of ownership, exclusively for married couples, automatically transfers the entire property to the surviving spouse upon the death of the other, thereby bypassing probate court.
Retirement: A surviving spouse can “roll over” their deceased spouse’s retirement account (such as a 401(k) or IRA) into their own. This allows them to continue growing the funds tax-deferred and take distributions over a longer period, avoiding potential tax penalties that would apply to a non-spouse beneficiary.
Family and Immigration Benefits
Parental Rights: Marriage can simplify the process of establishing parental rights for a non-biological parent. Vermont law recognizes both spouses in a same-sex marriage as legal parents of a child conceived during the marriage.
Immigration: Marriage to a U.S. citizen or legal resident provides a direct path to legal residency for a non-citizen spouse.
Essential Legal Documents for Every Couple
While marriage provides some automatic legal rights, it is not a substitute for proper legal planning. Every couple, whether married or not, should have these documents to ensure their wishes are honored.
1. Estate Planning
Will: A will is the most basic estate planning tool. It dictates how your property will be distributed upon your death and, if you have children, can name a legal guardian. Without a will, state law will determine who inherits your assets, which may not be your partner.
Beneficiary Designations: For assets like life insurance policies, retirement accounts (401ks, IRAs), and investment accounts, beneficiary designations are crucial. They supersede a will, so you must keep them updated to ensure your partner receives these assets directly.
2. Incapacity Planning
These documents are vital for a medical or financial emergency.
Advance Directive for Health Care (ADHC): An ADHC, also known as a living will or medical power of attorney, allows you to name a person to make healthcare decisions for you if you become incapacitated. It also includes instructions for end-of-life care. Without this, your partner may not have the legal authority to act on your behalf.
HIPAA Release: A HIPAA Release is a legal document that allows healthcare providers to share your private medical information with people you designate. Without this release, the Health Insurance Portability and Accountability Act (HIPAA) prevents medical professionals from disclosing your health information—even to your spouse—regarding your medical situation, care, or treatment.
Durable Power of Attorney (DPOA): A DPOA appoints a trusted individual to manage your financial affairs if you are unable to do so. This includes paying bills, managing investments, and handling real estate.
For Queer Couples in Vermont
While same-sex marriage is now legal nationwide, it’s important for queer couples to remember that not every legal right is automatic. If you are married, your rights and responsibilities are the same as any other married couple in Vermont. However, for those who choose not to marry, or for those with children from a prior relationship, additional legal steps are essential to ensure your family is fully protected.
Second-Parent Adoption: For couples with children where one partner is not a biological or adoptive parent, a second-parent adoption is crucial. This step legally establishes the non-biological parent’s rights, which provides vital security in case of separation or the death of the biological parent.
Co-Parenting Agreement: A written agreement can outline how you will co-parent, addressing issues like decision-making, financial responsibilities, and custody.
For Life Partners Who Choose Not to Marry
Choosing not to marry is a personal decision, but it's important to understand the legal implications. Vermont does not recognize common-law marriage. This means that no matter how long you and your partner live together, a court will not view your relationship as a legal marriage. This makes legal planning even more important for your protection.
No Automatic Rights: Unmarried partners do not have the same legal protections that married couples do. You are not automatically entitled to spousal support ("palimony"), or a share of your partner's property upon a breakup or death. Without a will, an unmarried partner has no legal right to inherit from their deceased partner's estate, as the state's intestacy laws only recognize a surviving spouse and blood relatives as legal heirs.
Property Disputes: If an unmarried couple breaks up and cannot agree on how to divide property, a judge will not apply the "equitable distribution" laws used in a divorce. Instead, property division is based on legal ownership, which can be difficult to prove.
To gain some of the protections that marriage provides, life partners should consider putting these legal documents in place:
Cohabitation Agreement: This document is similar to a prenup, but for unmarried couples. It's a legal contract that can define how property, finances, and debts will be handled during your relationship and in the event of a breakup.
Property Ownership: When buying a home together, you can choose to title it as "joint tenants with right of survivorship." This ensures that if one partner passes away, the other automatically inherits the property without it going through probate court.
Wills & Incapacity Documents: Like all couples, unmarried partners must have a will, beneficiary designations, and an Advance Directive for Health Care (ADHC) and Durable Power of Attorney (DPOA) to ensure their wishes are honored in an emergency.
Practical Considerations for All Couples
Navigating marital property law requires careful planning. Whether you are entering a marriage, considering a postnuptial agreement, or facing a divorce, it is highly recommended to seek independent legal counsel. An experienced attorney can help ensure your rights are protected and that your agreements will be enforceable.
Beyond legal documents, couples should discuss and make plans for:
Financial Management: Decide on how you will manage finances. Will you have a joint bank account, separate accounts, or a combination of both?
Access to Information: Ensure your partner has access to critical information, such as passwords, banking details, and contact information for your key advisors (lawyer, financial planner). Consider using a secure password manager for this purpose.
Healthcare Information: Know each other's basic medical information, including blood type, medications, allergies, and the name and contact information of your primary care providers.
By addressing these legal and practical matters together, you can build a strong foundation for a secure and shared future.
