Beyond The Will, Client Compass

Help, My Spouse Disinherited Me!

April 23, 2020


We previously discussed how Massachusetts protects a surviving spouse from disinheritance through a statutory elective share of the Estate.  But what if a surviving spouse’s statutory elective share is very small due to the family composition?  There are a few options that a surviving spouse can take.

First, a surviving spouse has the option of objecting to the Will to challenge their disinheritance.  If successful, objecting to the Will could be more financially beneficial to a surviving spouse because, if the Court determines that the Will is invalid and if there is no earlier Will, the deceased spouse would die intestate and the surviving spouse would receive their intestate share, in accordance with M.G.L. c. 190B, § 2-102.  For example, take a scenario where the decedent died survived by a wife and parents:  under the elective share statute, M.G.L. c. 191, § 15, the surviving spouse is entitled to only $25,000, and assuming the value of the estate exceeds $25,000, a life estate in one-half of the remaining assets; whereas, under the intestate share statute, M.G.L. c. 190B, § 2-102(2), the surviving spouse is entitled to the first $200,000 plus three-fourths of any balance of the intestate share.  Under this scenario, not only is the amount higher under the intestate share but the surviving spouse would receive the money outright, rather than held in a life estate, thereby allowing the surviving spouse to use and enjoy the assets during their lifetime and then to leave any remaining assets to the surviving spouse’s loved ones upon death.

Similarly, depending on the circumstances, perhaps there are reasons to file an equity complaint challenging late-in-life transfers, a trust, or beneficiary designations.  In both a Will objection or in an equity complaint, a surviving spouse could argue that the deceased spouse was under the “undue influence” of someone when they wrote the Will.  Also, a surviving spouse could argue that the deceased spouse lacked the mental capacity to understand the Will at the time of execution.   A surviving spouse would be in the same position as anyone else challenging an instrument, and these types of cases are very fact specific.  We have previously discussed undue influence cases (including burden shifting in undue influence cases involving a fiduciary) and lack of capacity cases in our blog series.

Second, if the facts do not support any claim of undue influence or lack of capacity and a surviving spouse elects to take their elective share, a surviving spouse could try to negotiate a buyout of the life interest.  This would result in the surviving spouse “owning” the inherited assets, rather than only possessing a life estate in the assets.

Third, there are additional statutory financial protections for the surviving spouse, on top of the elective share.  Under M.G.L. c. 190B, § 2-403, a surviving spouse (or, if none, decedent’s children) has a right to receive up to $10,000 in excess of any security interests therein, consisting of household furniture, automobiles, furnishings, appliances, and personal effects.  Massachusetts appreciates that the surviving spouse is likely living in decedent’s home, so the legislature enacted a statutory protection under M.G.L. c. 190B, § 2-403(b) to allow the surviving spouse to remain in decedent’s home for not more than six months after the date of death without being chargeable for rent.

Also, under M.G.L. c. 190B, §§ 2-404 & 2-405, the surviving spouse (and decedent’s minor children) are entitled to a discretionary family allowance in estate assets for their maintenance during the period of estate administration but not longer than one year.  This allowance may be paid in a lump sum or in periodic installments.  The amount of such family allowance is decided on the facts of the case, such as the previous standard of living, nature of other resources available to meet living expenses during the administration period and before assets are distributed, the surviving spouse’s income, and whether life insurance proceeds or income from living trusts are available.  In any event, the maximum family allowance is $18,000 lump sum or periodic installments not exceeding $1,500 per month for one year.

In sum, it is very unfortunate to learn of one’s disinheritance after the death of a spouse.  During a time of incredible sadness, it is unfortunate when it becomes a time of anger and self-doubt.  Clients have said to me that they “suspected” such disinheritance.  In order to avoid this anxiety, as well as the time and expense of challenging the estate plan, it is important for spouses to communicate about their planning and living needs, as well as to seek the assistance of skilled estate planning counsel.  For instance, a simple change in the ownership of decedent’s home from decedent’s name solely to tenants by the entirety would guarantee a surviving spouse inherits the home, rather than just the right to continue to live there for six months rent-free.  Failure to have such necessary conversations and to conduct such advance planning could leave a surviving spouse scrambling to determine their legal rights and options.  Especially with today’s more modern families, it benefits the entire family in order to avoid significant disruption to an estate plan and potential rifts in familial relationships.

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