Beyond The Will, Client Compass

Blended Families and Intestacy Laws with Step-Children

June 25, 2020


The Massachusetts Uniform Probate Code (“MUPC”), which went into effect on March 31, 2012, significantly changed estate administration in Massachusetts.  One particular area of change was taking into account modern “blended families” for the first time.  Blended families are very common, and, as Patricia Malley discussed, it is critical to plan ahead and draft an estate plan considering each family’s unique circumstances.  But what happens without an estate plan? 

The questions of who gets what and how much become more complicated in situations involving blended families.  For example, in a traditional nuclear family where both spouses only have children born of their marriage, the MUPC directs that the surviving spouse would receive the decedent’s entire probate estate.  Even if the decedent died without any children or parents but had step-children (surviving spouse’s children) who were not adopted, the surviving spouse would receive the entire probate estate. 

The surviving spouse’s share is reduced, however, in other situations in order to benefit the decedent’s surviving children.  If either the decedent or the surviving spouse have children from another marriage or relationship (regardless if they have children together), the surviving spouse’s share is reduced as follows:  the first $100,000 of the probate estate plus one-half of the balance.  The decedent’s children receive the other one-half balance.  If the surviving spouse has children (decedent’s step-children) from another marriage or relationship, those children do not receive any intestate share. 

The takeaway from this allocation is that the law protects the decedent’s children by giving a portion of the decedent’s probate assets directly to them.  This allocation ensures that the surviving spouse (a surviving step-parent of the decedent’s children) does not receive all of the decedent’s assets and then use such assets for their and their own children’s benefit. 

Although the intestacy laws are an improvement for blended families, such laws still are not perfect.  For instance, the intestacy laws do not recognize any close relationship between a decedent and their step-children.  This is a particular hole that resonates with me because I am close with my step-father.  Also, spouses often intend for the surviving spouse to maintain a certain comfort level upon the other spouse’s death, such as providing life insurance benefits and leaving the marital home for the surviving spouse’s continued residence, and those assets would pass through intestacy without proper planning.  Accordingly, it is critical that the spouses meet with a skilled estate planner, understand what is a probate asset versus a non-probate asset, and set up an estate plan to carry out their intentions. 

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