Spousal Inheritance: A Surviving Spouse's Share of the Estate
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In the realm of estate planning, individuals often seek to ensure their assets are distributed according to their wishes after their passing. While the law generally grants you the freedom to determine the fate of your assets, it's important to note that there are certain considerations when it comes to providing for your surviving spouse.
Most people naturally desire to provide for their surviving spouse's financial well-being. However, there may be circumstances where you prefer to allocate the majority of your assets to other beneficiaries. These scenarios can include:
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Understanding the Spousal Share in Massachusetts Estate Planning
A surviving spouse in Massachusetts has a right to receive a certain portion of your estate no matter what your will says. This legal requirement is called the Spousal Share. The Spousal Share is determined based on various factors, including the presence of children and other relatives:
- Spousal Share with Children: If you and your spouse have children together, the Spousal Share consists of the first $25,000 in assets and a life interest or life estate in 1/3 of the remaining assets.
- Spousal Share without Children: In cases where there are no children, and your spouse has other relatives, the elective share comprises the first $25,000 and a life estate in 1/2 of the remaining assets.
- Rare Scenarios: When the deceased spouse has no living relatives, an uncommon circumstance, the Spousal Share includes the first $25,000 and 1/2 of the remaining assets, provided directly to the surviving spouse.
Understanding Spousal Share in Estate Planning: Probate vs. Non-Probate Assets
When it comes to estate planning, understanding the distinction between probate and non-probate assets is crucial. The Spousal Share typically applies to probate assets, which encompass assets passed through your will and approved by the court.
Non-probate assets, on the other hand, include assets like life insurance proceeds, investment accounts, and retirement funds that automatically transfer to designated beneficiaries. Additionally, jointly-owned real estate with your spouse also bypasses the probate process. Importantly, under current laws, these non-probate assets do not exempt your spouse from claiming a spousal share of your probate assets.
It's essential to regularly review and update your beneficiary designations to ensure they align with your estate planning objectives for your entire estate.
This means that while you may intend to leave the bulk of your assets to your spouse through real property and life insurance, they may still have the right to claim a portion of your probate assets, even if your intention was to allocate those assets to others.
Non-probate assets, on the other hand, include assets like life insurance proceeds, investment accounts, and retirement funds that automatically transfer to designated beneficiaries. Additionally, jointly-owned real estate with your spouse also bypasses the probate process. Importantly, under current laws, these non-probate assets do not exempt your spouse from claiming a spousal share of your probate assets.
It's essential to regularly review and update your beneficiary designations to ensure they align with your estate planning objectives for your entire estate.
This means that while you may intend to leave the bulk of your assets to your spouse through real property and life insurance, they may still have the right to claim a portion of your probate assets, even if your intention was to allocate those assets to others.
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.
Exceptions include:
Exceptions include:
- The surviving spouse cannot collect assets left to the deceased spouse's own children.
- A will can include specific language stating that it is intended to be effective notwithstanding subsequent marriages.
- A will made in anticipation of marriage may not be subject to this elective share.
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.
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.
Meet Our Estate Planning Lawyers
Emily Smith-Lee is the owner and founder of slnlaw. She is a 1996 graduate of Boston College Law School. She was previously a partner at the Boston office of a large international firm, where she worked for thirteen years before starting the firm that became slnlaw in 2009. She has been recognized as Massachusetts Superlawyer each year since 2013, and in 2018 earned recognition as one of Massachusetts Lawyers Weekly's Lawyers of the Year.
Jenna Ordway: Jenna is a 2013 graduate of Quinnipiac Law School, and also earned an LLM in Taxation from Boston University in 2015. She has been affiliated with slnlaw since 2011, first as a law clerk and then as an attorney. Jenna has been recognized since 2019 as a "Rising Star" by Massachusetts Superlawyers. Jenna wrote a book on estate planning: The Road to Peace of Mind: What You Need to Know About Estate Planning. Jenna has helped many individuals and families with planning to protect their legacies and loved ones, and planning for the future and succession of their businesses.
Sharleen Tinnin: Sharleen is a 2010 graduate of Northeastern University School of Law, and earned her LLM in estate planning from Western New England Scool of Law in 2016. She has been with slnlaw since 2023. Prior to joining slnlaw, she worked with King, Tilden, McEttrick & Brink, P.C. on complex civil litigation matters. She previously worked for the United States Department of Justice, and received an "Excellence in Justice" award in 2017. Sharleen has helped many clients with planning for their legacies and their future, and navigating the probate process in Massachusetts after the death of a loved one.
How We Can Help
Creating a plan that provides adequate support for your spouse and for other loved ones at the same time can be complex. We are ready to help. We can provide a comprehensive plan customized to your unique needs and goals, ensuring your legacy is protected and your wishes honored. You can use the button below to schedule a free information call, or simply give us a call at 781-784-2322.
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