Massachusetts law affords surviving spouses important rights and benefits. In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.
What if a Spouse Dies Without a Will?
Elective Share or Election Against a Will
Pursuant to Mass. Gen. Laws. ch. 190b §2-403, families of the decedent are afforded important property rights under Massachusetts Law. Specifically, the law provides that certain property be considered exempt property, thereby passing automatically to a spouse regardless of intestate succession laws or the terms and provisions of a will. The surviving spouse is entitled to the tangible personal property up to $10,000 in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects.
Discretionary Family Allowance
The surviving spouse may also be entitled to a reasonable allowance in money out of the estate for his or her maintenance during the period of administration. The period of the discretionary allowance during the estate’s administration may not continue for longer than one year if the estate is inadequate to discharge allowed claims.
The discretionary family allowance paid to the surviving spouse may be paid as a lump sum or in periodic installments. Please note that pursuant to Mass. Gen. Laws. ch. 190b §2-404, the discretionary family allowance is exempt from and has priority over all unsecured claims. In addition, the discretionary family allowance is not chargeable against any benefit or share passing to the surviving spouse by the will of the decedent, unless otherwise provided, by intestate succession or by way of elective share. The death of any person entitled to a discretionary family allowance terminates the right to allowances not yet paid.
Filing a Known Will
Whether through formal or informal probate, no probate will begin more than three years after the decedent’s death. See Mass. Gen. Laws. ch. 190b §3-108. It is important to file a known will by this time to ensure the estate is handled pursuant to state law. An experienced probate attorney can aid you in determining whether the decedent’s estate should proceed through informal or formal probate.
What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?