A voluntary transfer of any property by an individual during a
marriage or civil union and not to take effect until after the
individual’s death, made without adequate consideration and for the
primary purpose of defeating a surviving spouse in a claim to a share
of the decedent’s property so transferred, shall be void and
2
inoperative to bar the claim. The decedent shall be deemed at the
time of his or her death to be the owner and seised of an interest in
such property sufficient for the purpose of assigning and setting out
the surviving spouse’s share.
The court concluded that § 321 was a modern articulation of a longstanding rule that a spouse
cannot convey property to others to fraudulently deprive the surviving spouse of property to which
he or she has a right, that is, commit “a fraud upon . . . [the surviving spouse’s] marital rights.”
Thayer v. Thayer, 14 Vt. 107, 123 (1842) (emphasis omitted). The court emphasized that “an
intent to defraud must be found as a fact” and that a fraudulent intent could not be “presumed from
the knowledge that [a diminished estate] would be the effect of the conveyance.” Dunnett v.
Shields, 97 Vt. 419, 426, 428-29, 123 A. 626, 630-31 (1924) (emphasis omitted) (stating that “the
law in no case presumes fraud,” and “[o]ne who seeks to set aside a conveyance on the ground that
it is fraudulent must establish that fact so clearly and conclusively as to put it beyond a reasonable
doubt”), overruled on other grounds by Trepanier v. Getting Organized, Inc., 155 Vt. 259, 583
A.2d 583 (1990).
¶ 6. The court reasoned that wife relied solely upon the effect of the beneficiary
designation, the exact reasoning rejected in Dunnett. The undisputed facts showed that husband