What If My Spouse Dies Without A Will? By Foxboro MA Area Attorney

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

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 do I get if my spouse dies without a Will?

 

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. 

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

 

In the absence of a Will, § 2-102 of the MUPC provides that the surviving spouse is entitled to the entire estate in two circumstances.  The first circumstance is where there are no stepchildren or descendants of stepchildren, i.e., all the descendants of the decedent are also descendants of the surviving spouse and all the descendants of the surviving spouse are also descendants of the decedent.  The second circumstance is where the decedent had no descendant or parent that survived him or her. 

 

Under § 2-102 of the MUPC, if (1) there is no Will, (2) there are either stepchildren or descendants of stepchildren and (3) the decedent had one or more descendant, the spouse is entitled to the first $100,000 and half the balance (and the decedent's descendants receive the other half).  Moreover, under § 2-102 of the MUPC, if (1) there is no Will, (2) there are either stepchildren or descendants of stepchildren,(3) the decedent had no descendant and (4) the decedent was survived by a parent, the surviving spouse is entitled to the first $200,000 and three-quarters of the balance (and the decedent's surviving parent receives the other quarter).

 

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.  

 

Rather than let the law determine what you are entitled to upon your spouse's death and what your spouse is entitled to upon your death, you both should have an estate plan setting forth your wishes as to who gets what at the death of the first-to-die spouse and at the death of the surviving spouse and naming a personal representative, a successor personal representative (backup person) and/or give your named personal representative the power to nominate a successor of his or her choosing. 

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, Norwood, MA, Norton, 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

Hessco Elder Services  

Foxboro MA

Foxboro MA Council on Aging

Foxboro MA website

Foxboro MA Reporter

Foxboro MA Patch

Foxboro MA Boyden Library

Foxboro MA Cable Access

Foxboro MA Historical Society and Foxboro MA Historical Commission

Foxboro MA Rotary Club

ESTATE PLANNING 

AARP estate planning article 

Forbes magazine estate planning article 

Kiplinger magazine estate planning article 

USA newspaper estate planning article  

American Bar Association's Estate Planning FAQ's 

New York Times article on estate planning 

US News article on estate planning 

Fox Business article on estate planning 

Los Angeles Times article on estate planning   

COA'S 

Abington MA Council on Aging 

Attleboro MA Council On Aging

Avon MA Council on Aging 

Bridgewater MA Office on Elder Affairs 

Brockton MA Council on Aging 

Canton MA Council on Aging 

East Bridgewater MA Council on Aging 

Easton MA Council on Aging 

Foxboro MA Council on Aging

Mansfield MA Council on Aging 

Norton MA Council on Aging 

North Attleboro MA Council On Aging

Norwood MA Senior Center

Plainville MA Council On Aging

Randolph MA Council on Aging 

Raynham MA Council on Aging 

Rehoboth MA Council on Aging 

Rockland MA Council on Aging 

Sharon MA Council on Aging 

Stoughton MA Council on Aging 

Walpole MA Council On Aging

West Bridgewater MA Council on Aging 

Whitman MA Council on Aging  

 

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