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Easton MA Attorney: Can You Disinherit Your Spouse Under MA Law?

By Brigitte von Weiss

Real Estate Attorney with an Expertise in Estate Planning and Elder Law

May 01, 2014 11:56 PM

The author Brigitte von Weiss of VON WEISS LAW OFFICE is an estate planning lawyer and elder law attorney in Easton, MA.

Website: vonweisslaw.com

What if there is a Will, but the surviving spouse was left nothing or a token amount?

Under Massachusetts law, can you disinherit your spouse?

A preliminary issue is whether there is a valid and enforceable prenuptial agreement or separation agreement impacting the inheritance rights of the surviving spouse.

The balance of this blog assumes there is no such valid and enforceable prenuptial or separation agreement.

Under Massachusetts law, a surviving spouse has the right to waive the Will and claim instead the forced share (also referred to as "elective share" and "statutory share").

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012. However, the MUPC did not change a spouse's right to waive the Will nor the calculation of the forced share.

The forced share is far less than the share the spouse would have received if there were no Will. The forced share applies only to the decedent’s probate property and property transferred by the decedent to a revocable trust during life.

If the decedent is survived by descendants, the forced share is 1/3 of the decedent’s property---the spouse is entitled to the first $25,000 outright and a life estate in the remainder of the 1/3 share.

If the decedent is survived by blood relatives but not descendants, the forced share is $25,000 and a life estate in half of the remaining property.

If the decedent is not survived by blood relatives, the forced share is $25,000 and half of the remaining property outright.

There is also the "family allowance." Under § 2-404(a) of the MUPC, the personal representative (person in charge of the estate) has the authority to pay a "family allowance" to the surviving spouse and "minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent." Unless the court orders otherwise, the personal representative's discretionary authority to pay a family allowance is capped at a lump sum of $18,000 or $1,500 per month for a period of one year. M.G.L. c. 190B, § 2-405.

There is furthermore the "exempt property" statute. Under § 2-403(a) of the MUPC, the surviving spouse, or children if there is no surviving spouse, is entitled to $10,000 of exempt property from the decedent’s probate estate. The $10,000 first comes from "household furniture, automobiles, furnishings, appliances and personal effects."

Finally, under § 2-403(b) of the MUPC, the surviving spouse has the right to remain rent-free in the decedent’s house for six months after the decedent’s death.

Nothing in this blog should be considered legal advice as this is a complicated area of the law.

The author Brigitte von Weiss of VON WEISS LAW OFFICE is an estate planning lawyer and elder law attorney serving clients in Easton, MA, as well as nearby towns and cities, including Abington, MA, Attleboro, MA, Avon, MA, Bridgewater, MA, Brockton, MA, Canton, MA, East Bridgewater, MA, Foxboro, MA, Mansfield, MA, North Attleboro, MA, Norton, MA, Norwood, MA, Plainville, MA, Randolph, MA, Raynham, MA, Rehoboth, MA, Rockland, MA, Sharon, MA, Stoughton, MA, Walpole, MA, West Bridgewater, MA, and Whitman, MA.

Brigitte, a graduate of Boston College School of Nursing and an honors graduate of Loyola University of Chicago Law School, stands out from other elder law and estate planning attorneys in that she worked as a registered nurse for four years and earned a Master of Science in Taxation with high distinction from Bentley College. This unique combination of legal, nursing and taxation backgrounds enables Brigitte to provide outstanding legal guidance to her clients in their time of need. Call (508) 238-3005 for a free phone conversation with Brigitte to learn if she can help. You also may reach her through her website at www.vonweisslaw.com.

ADDITIONAL RESOURCES:

The Massachusetts Uniform Probate Code (MUPC)

Bristol County Family and Probate Court

Plymouth County Family and Probate Court

Norfolk County Family and Probate Court

Alzheimer's Association

National Academy of Elder Law Attorneys

Massachusetts Chapter of National Academy of Elder Law Attorneys

Massachusetts Area Agency's on Aging (AAA's)
and Aging Service Access Points (ASAP's)

MassHealth form

Bristol Elder Services

Old Colony Elder Services