A Surviving Spouse's Share of Estate in Massachusetts

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:

1. Second Marriages: If you're in a second marriage and wish to support your children from a previous marriage financially.
2. Family Assets: You may have specific family assets that you want to pass directly to your children.
3. Spousal Inheritance: Your spouse may be expecting a substantial inheritance, leading you to consider leaving some assets primarily to your children, especially if they involve long-held family assets.

Regardless of your motivation, if you intend to leave your spouse with less than the spousal or elective share, it's essential to understand the legal framework and collaborate with an experienced estate planning attorney to effectively achieve your objectives.

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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:

1. 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.
2. 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.
3. 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.

It's important to note that the initial $25,000 is typically paid from the personal property of the deceased. If this amount is insufficient, the remainder is funded through the sale or mortgage of real property owned by the deceased 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.

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:

• 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.

How Our Estate Planning Lawyers Can Help

We are ready to help.  We understand this can be a difficult issue to tackle, so we have designed our process to make it as easy as possible for you to get the plan in place that protects you and your family and accomplishes your goals.  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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