A Surviving Spouse's Share of Estate in Massachusetts
In general, the law allows you to do what you want with your assets at your death. This does not include completely disinheriting a spouse.
Most people do want to take care of their surviving spouse. There are, however, situations where you might want to give the bulk of your assets to someone else.
If you are on a second marriage and want to take care of your children from a first marriage, for example. Or you have family assets that you want to go directly to your children. Or perhaps your spouse is expecting a substantial inheritance of his or her own and you would rather leave assets to your children.
Whatever your reason, if you want to leave your spouse anything less than the spousal or elective share, you need to be aware of the rules and work with your estate planning attorney to make sure you can accomplish your goals.
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What Is the Spousal Share?
A surviving spouse in Massachusetts has a right to receive a certain amount of your estate no matter what your will says.
If you and your spouse have children together, that is the first $25,000 in assets and a life interest or life estate in 1/3 of the remaining assets. If you do not have children and your spouse has other relatives, the elective share is the first $25,000 and a life estate in 1/2 of the remaining assets.
If the deceased spouse has no living relatives, which is rare, the spousal share is the first $25,000 and 1/2 of the remaining assets outright.
The initial $25,000 is paid first from the personal property of the deceased. If that is insufficient, the remainder is paid from the sale or mortgage of real property belonging to the deceased spouse.
What Assets are Subject to the Spousal Share?
With some exceptions, the spousal share applies only to probate assets. Probate assets are those that pass through your will and are approved by the court.
Non probate assets are things like life insurance proceeds or investment and retirement accounts that pass automatically to your designated beneficiaries. If you jointly own real estate with your spouse, that too will pass automatically outside of probate. Under current law, receiving these assets will not preclude your spouse from claiming a spousal share of your probate assets. It is important to review and update your beneficiary designations from time to time to make sure they reflect your wishes in the context of your entire estate.
This means you may think you are leaving your spouse most of your assets because they will get the real property and life insurance proceeds. But they may still be able to claim a share of your probate assets, even if you intended for those assets to go to someone else.
Wills Made Before Marriage
A surviving spouse has additional rights if they are omitted from a will made prior to the marriage. This is called a "premarital will." With some exceptions, the surviving spouse is entitled to receive what he or she would have received if the deceased spouse died without a will.
Be Aware That Laws Can Change
A difficult aspect of estate planning is that the laws can change after you write your will. For example, for many years the spousal share was not applied to any non-probate assets. Recently, however the Massachusetts Supreme Judicial Court held that certain trusts created by the deceased spouse were subject to the spousal share.
Similarly, many states will count insurance proceeds and other accounts paid to the surviving spouse against the elective share, while Massachusetts does not. There have been efforts in Massachusetts to update the statutes on the spousal share. It is not unreasonable to expect that this too could change.
What this all means is that if you have a reason to want to leave your spouse less than 1/3 of your probate assets, it is critical to consult with an experienced estate planning lawyer to accomplish what you want.
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