Sometimes for various reasons, a person doesn’t want to leave any property to his or her spouse. Massachusetts like most states has a law designed to protect a surviving spouse from being impoverished. The law allows a surviving spouse to claim a portion of the estate despite the provisions of the deceased spouse’s will. This can be avoided with a properly executed pre or post nuptial agreement. However, without such documents, the surviving spouse has the right to claim a portion of the deceased spouse’s property regardless of the terms of the deceased spouse’s Will. This portion is known as the surviving spouse’s “statutory share”.
What is the amount of the statutory share in Massachusetts? It’s a complicated formula that essentially gives the surviving spouse the first $25,000 of assets and:
- a life interest in one third of the remainder of the property (if the decedent had children) or,
- a life interest in one half of the remainder of the property (if the decedent had relatives but no children or,
- one half of the assets outright (if the decedent had no children or other relatives).
What assets are subject to the statutory share? Generally only assets that pass through the decedents Will (assets in the decedents name alone without any beneficiary designations).
Why does this matter? Assets that are jointly owned with another person and assets received because of a beneficiary designation (401k, IRA, Life Insurance, Annuities, etc.) cannot be claimed by the surviving spouse.
If you intend to leave your assets to someone other than your surviving spouse then you need to review how you own your assets and your beneficiary designations from time to time to ensure that those assets will pass directly to the non-spousal beneficiary outside of the probate estate.
©Surprenant & Beneski, P.C. 35 Arnold Street, New Bedford, MA 02740, 336 South Street, Hyannis MA 02601 and 45 Bristol Drive, Easton MA 02375. This article is for illustration purposes only. This handout does not constitute legal advice. There is no attorney/client relationship created with Surprenant & Beneski, P.C. by this article. DO NOT make decisions based upon information in this handout. Every family is unique and legal advice can only be given after an individual consultation with an elder law attorney. Any decisions made without proper legal advice may cause significant legal and financial problems.