Divorce Law Monitor

The Spousal Elective Share

July 6, 2020


When it comes to your estate plan, the law seeks to protect and carry out your intentions with respect to the disposition of your property upon your death. But Massachusetts law may dictate a different outcome if you leave your spouse out of your will. In Massachusetts, like many other states, the elective share statute aims to prevent one from disinheriting a spouse.

The elective share statute permits a surviving spouse to set aside their deceased spouse’s will and instead claim a statutorily-defined portion of the deceased spouse’s probate estate. Depending on the existence of descendants of either or both spouses, parents of the decedent, and/or other close family members of the decedent, the surviving spouse may claim an amount ranging from one-third of the probate estate to $25,000 plus one-half of the remaining estate. A portion of that share may be received as a life estate in the subject property.

Unfortunately, in many circumstances, the elective share statute misses its mark in achieving a fair and equitable outcome for the surviving spouse. For example, the current statutory scheme fails to take into account the length of the marriage, thereby treating a recent marriage exactly the same as 40-year marriage. A recently married widower might receive a windfall while the widow of a long-term marriage may be left with a share that the Supreme Judicial Court has described as “woefully inadequate.”

Additionally, with the exception of a revocable trust created by the deceased spouse during life, the statute considers only the probate estate—i.e., property held in the decedent’s sole name at death. Yet, a surviving spouse may otherwise be well-provided for by their own individually-held assets or other property passing to them outside of the deceased spouse’s will by right of survivorship, beneficiary designation, trust, or otherwise. A surviving spouse who is receiving an IRA and life insurance proceeds but is left out of the deceased spouse’s will faces no barrier to electing to claim their statutory share of the probate property. Therefore, despite originally intending to protect an impoverished spouse, the statutory elective share may only serve as a disruption of an otherwise comprehensive and fair disposition of the deceased spouse’s assets, all to the detriment of the other beneficiaries.

Recently, legislative changes have been proposed that aim to address the statute’s shortcomings, but whether these will be adopted is uncertain. In light of the existing statutory scheme, it remains extremely important to consider a prenuptial or postnuptial agreement by which spouses can waive the right to claim a statutory share. Such documents can become particularly relevant in situations with blended families involving children outside the current marriage. Speak to an estate planning attorney to discuss how best to navigate your particular circumstances.

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