Spousal Share Rule

Article written by John C. Newman, Esq.
Posted on Feb 16, 2012

             When the Vermont Legislature was considering the changes to the spousal share rules during the 2009-2010 session, the legislation originally contained a measure that would have criminalized thefts from any fiduciary relationship.  From memory, I reprint the proposed statutory amendment below, which was stripped from the spousal share legislation as the bill moved from the House to the Senate.

             I suggest, firstly, that the Vermont Legislature seriously consider making thefts from an estate a crime and encourage probate judges to make criminal referrals in matters before their courts, and that the Legislature insist that State’s Attorneys allocate resources to the prosecution of thefts from fiduciary relationships.

            Second:  In Sec. 2, 14 V.S.A., add a section to read as follows:
             §339.  REFERRAL TO STATE’S ATTORNEY
             A probate judge who has good cause to believe that an individual has misapplied fiduciary property in violation of 13 V.S.A., §2540 may make a report to the state’s attorney.

            Third:  Add a new Sec. 3 to read as follows:
            Sec. 3, 13 V.S.A., §2540.  MISAPPLICATION OF FIDUCIARY PROPERTY
          (A) For purposes of this section:
              (1)  “fiduciary” includes:
                   (a)  a trustee, guardian, administrator, executor, conservator, and receiver;
                   (b)  an attorney in fact or an agent appointed under a durable power of attorney as provided by section 3508 of Title 14; and
                   (c)  any other person acting in a fiduciary capacity, but not a commercial bailee.
              (2)  “misapply” means deal with property contrary to:
                   (a)  an agreement under which the fiduciary holds the property; or
                   (b)  a law prescribing the custody or disposition of the property.
          (B)  A person commits an offense if he or she intentionally, knowingly, or recklessly misapplies property he or she holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.
          (C)  A person who violates subsection (B) of this section shall be imprisoned not more than ten years or fined not more than $5,000.00 or both if the value of the property misapplied exceeds $900.00 in value.
          (D)  A person who violates subsection (B) of this section shall be imprisoned not more than one year or fined not more than $1,000.00 or both if the value of the property misapplied does not exceed $900.00 in value.

            Fourth:  Add a new Sec. 4 to read as follows:
            Sec. 4., 13 V.S.A., §2578 RESTITUTION
          (A) A sentencing court may order reasonable restitution where: merchandise stolen is not recovered or is recovered in damaged condition.
             (1)  merchandise stolen is not recovered or is recovered in damaged condition. Damages shall be calculated based on retail value.; or
             (2)  fiduciary property has been misapplied pursuant to 13 V.S.A., §2540.  Damages shall be based on the value of the property misapplied.
          (B) Restitution may be ordered in addition to any other penalties imposed.
          (C) Restitution shall be supervised by the department of corrections.

 

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