Beyond The Will, Client Compass

Surprise: The MUPC, Intestacy, and Childless Couples

February 22, 2024


Once upon a time, I was a young newlywed. My spouse and I always assumed that because we had no money, no kids, and were married, we were each other’s heirs. We had numerous conversations about how neither of us needed a will because we would just inherit each other’s property if the worst should happen.

Then, I started my job as a fiduciary litigator. Boy, was I in for a surprise when I learned what the Massachusetts Uniform Probate Code actually says. For married couples without children, the intestate rule is that the surviving spouse receives the first $200,000 and three-quarters of the balance of the intestate estate if the decedent spouse has a parent who survives them. G. L. c. 190B, § 2-102 (2). Let me say it another way: you can have been married for thirty years, and if you have a surviving parent but no children, your spouse will not receive your entire probate estate if you die without a will. Instead, your parents will receive a quarter of your probate estate.

There are only two scenarios in Massachusetts in which your spouse receives your entire intestate estate: (1) if no descendant or parent of the decedent survives them or (2) if all surviving descendants of the decedent are also descendants of the surviving spouse. G. L. c. 190B, § 2-102 (1). If you have children with someone other than your surviving spouse or your surviving spouse has children with someone other than you, your spouse receives $100,000 plus half the balance of the intestate estate. G. L. c. 190B, § 2-102 (2) and (3).

What does this mean in practice? It means that for young or childless married couples, you still need a will unless you want your parents to encroach on the assets you and your spouse are building. Wills are not the kind of thing you can simply put off, thinking that you are too young or have too few assets. If you have a blended family, with stepchildren, you also may want a will or to think about adopting any children with whom you have no biological relation. Beware, though, some consequences result from adoption. You should consult with an experienced estate planner to discuss them.

I was shocked to learn that a surviving spouse must share an intestate estate with surviving parents when there are no children of the marriage. I hope that by writing about it and other wrinkles to the inheritance of a surviving spouse in this blog post, you will understand the importance of a will, particularly if you are a young married person, a married person who does not plan to have children, or a married person who is part of a blended family. Needless to say, I have started drafting my will and I hope that after reading this, you think about your estate plan, too.

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