Surviving spouse rights in Massachusetts include:
- Intestate Share
- Elective Share
- Exempt Property
- Family Allowance
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 widow 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, and we’ve written more about it here.
- 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.
- 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.
- 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.
- SHARE OF SURVIVING SPOUSE – CHILDREN OF SURVIVING SPOUSE NOT OF THE DECEDENT. If all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants 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.
- SHARE OF SURVIVING SPOUSE – CHILDREN OF DECEDENT 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.
All of this information is found in Mass. Gen. Laws. ch. 190b §2-102.
Surviving Spouse’s Right to 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 kindred: The surviving spouse is entitled to elect $25,000 and one-half of the balance of personal and real property.
In either of the above two scenarios, Massachusetts law provides that: “In either case if he or she would thus take real and personal property to an amount exceeding twenty-five thousand dollars in value, he or she shall receive, in addition to that amount, only the income during his or her life of the excess of his or her share of such estate above that amount, the personal property to be held in trust and the real property vested in him or her for life, from the death of the deceased.”
- No issue or kindred: 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.
Surviving Spouse’s Right to 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 has rights in Massachusetts 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. 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.