Massachusetts

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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?

  • INTESTATE. When an individual dies without a will, intestate succession law will govern.  Under Massachusetts law, a statutory framework determines how a decedent’s estate will be distributed.  This is referred to as Intestate Administration.
  • INTESTATE SHARE.  If a spouse dies without a Will, the surviving spouse receives an intestate share.
  • SHARE OF SURVIVING SPOUSE – NO CHILDREN, NO PARENT.  If the decedent is survived only by the surviving spouse, the surviving spouse’s intestate share is the entire estate.  See Mass. Gen. Laws. ch. 190b §2-102(1)(ii).
  • SHARE OF SURVIVING SPOUSE – ALL SPOUSAL CHILDREN.  If the decedent is survived by children, all of whom are of both the decedent and the surviving spouse, the surviving spouse’s intestate share is the entire estate.  See Mass. Gen. Laws. ch. 190b §2-102(1)(ii).
  • SHARE OF SURVIVING SPOUSE – PARENT OF DECEDENT, NO CHILDREN.  If the decedent is survived by a parent and the surviving spouse, the surviving spouse’s intestate share is the first $200,000, plus three-fourth (3/4) of any balance of the intestate estate.  See Mass. Gen. Laws. ch. 190b §2-102(2)(a).
  • SHARE OF SURVIVING SPOUSE – CHILDREN OF SURVIVING SPOUSE NOT OF THE DECEDENT.  If there are children of the surviving spouse who are not also children of the decedent, then the surviving spouse receives the first $100,000 of the estate, and one-half of the rest, with the children receiving the other half.  See Mass. Gen. Laws. ch. 190b §2-102(3).
  • SHARE OF SURVIVING SPOUSE – CHILDREN OF SURVIVING SPOUSE NOT OF THE SURVIVING SPOUSE.  If there are children of the decedent who are not also children of the surviving spouse, then the surviving spouse receives the first $100,000 of the estate, and one-half of the rest, with the children receiving the other half.  See Mass. Gen. Laws. ch. 190b §2-102(4).

Elective Share or Election Against a Will

  • ELECTIVE SHARE. Under Massachusetts law, a surviving spouse has a right to share in a decedent’s estate.  In essence, a surviving spouse’s Right of Election renders it impossible to disinherit a spouse. The surviving spouse’s elective share is impacted based upon who survives the decedent. See Mass. Gen. Laws. ch. 191 §15.
    • Children or Issue: The surviving spouse is entitled to elect one-third of all personal and real property.
    • No issue, but next of kin: The surviving spouse is entitled to elect $25,000 and one-half of the balance of personal and real property. If the elective share exceeds $25,000, the spouse takes $25,000 plus an income for life in the excess of the estate that exceeds $25,000.
    • No issue: The surviving spouse is entitled to elect $25,000 and one-half of the personal and real property absolutely.
  • DEADLINE FOR FILING FOR THE ELECTIVE SHARE. The elective share election must be made within six months after the probate of the decedent’s will.

Exempt Property

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?

  • Some probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation.

 

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