The Elective Share

April 9th, 2021 by

How a Spouse can Derail your Estate Plan

In Massachusetts, a surviving spouse can claim a fixed portion of the decedent’s estate (referred to as an elective share), and in so doing, circumvent the decedent’s wishes. Most commonly, this scenario occurs when the decedent has been married more than once and does not want to provide for their current spouse in their estate plan.

Consider the following example: Pat is married to Kelly and they have no children. Kelly is Pat’s second wife; he was previously married and has two children from his first marriage. Pat passes away leaving a Last Will and Testament (“Will”), which states that he wants the vast majority of his property to go to his children. Kelly is upset about the amount of the share left to her in Pat’s Will.  She thinks she should be entitled to more because of how long she was married to Pat, and feels it is unfair for the children inherit the majority of the estate. When Pat’s estate is probated and his Will is taken to the Court, Kelly can file a waiver of Pat’s Will and elect to take get the amount she is entitled to under Massachusetts law.

How much is Kelly entitled to under Massachusetts law? Unfortunately, the answer to this question is not a simple as many heirs, attorneys, or even surviving spouses would like. In the scenario above, Kelly would be entitled to an interest in 1/3 of Pat’s personal and real property. To the extent that the value of the 1/3 exceeds $25,000, Kelly will receive $25,000 outright, the remainder of her 1/3 share to be held in trust. Kelly would have a life estate in the 1/3 of the real estate. In other states, like Florida, Kelly would simply be entitled to 1/3 of Pat’s property – a much simpler calculation. In Massachusetts, the statute for determining the value of the surviving spouse’s elective share is so needlessly complex, that it often results in a disastrous situation for the decedent’s estate.

Elective shares commonly result in lengthy and expensive litigation which drains funds from the estate and reduces the amount of inheritance the decedent’s loved ones receive. In addition to the financial burden, litigation over elective shares leads to major interpersonal problems, sometimes ruining family relationships.

Lane, Lane & Kelly is experienced and well-versed in litigation related to spousal elective shares. Additionally, we can create an estate plan for you that will eliminate the risk of your estate being challenged and litigated. Elective shares are just one potential pitfall that can occur when your property is being distributed to your loved ones after you pass away. We can help you keep your assets intact and assist you in preventing any turmoil among your family members.

If you would like to create an estate plan or discuss this topic in more detail, please call our office 781-848-0040 to schedule a free consult.

How to Maintain Anonymity When You Win the Lottery in Massachusetts

November 6th, 2020 by

Lottery winners in Massachusetts are often surprised when they go to claim their prize and are then asked by the lottery commission to pose for a photograph and disclose their identity to the public. Most big winners want to conceal their identities from the public and unfortunately, most states – including Massachusetts – do not allow winners to claim prizes anonymously.

However, in Massachusetts, there is still a way to maintain your anonymity when you claim your prize. Winners can establish a trust and have a trustee claim the prize in the name of the trust. Most often, an attorney is hired by the winner to create a trust, and that same attorney also serves as the trustee and claims the prize so the winner can remain anonymous.

Lane, Lane & Kelly, LLP has experience representing Lottery winners of large prizes, including establishing trusts and serving as trustee to claim winnings so that winners can obtain their funds anonymously. Contact our office (781) 848-0040 for more information on establishing a lottery trust to ensure your privacy, and estate planning documents to protect your assets, and provide security for you and your loved ones.

Paul Bella, Esquire

This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.

Estate Planning and Coronavirus: The Importance of Having Health Care Documents and What it Means for your Current Health Care Documents. 

October 9th, 2020 by

With the spread of the novel coronavirus (COVID-19), and the abundance of fear and uncertainty that has come with it, many people have questions about creating estate plans or modifying their current estate plans. There is a common misconception that estate planning documents only concern what will happen with your property after you pass away. Considering the potentially tragic health outcomes that can result from contracting the coronavirus, it is not a bad idea to consider how you want your property distributed after you are gone. However, proper estate planning also includes the implementation of documents that will become effective while you are still alive. Among those living documents are the Health Care Proxy, HIPAA Release, and Advanced Directives or Living Will.

The Importance of Having Health Care Documents During the Pandemic

In the midst of a health crisis such as a pandemic, it is important to execute or update health care documents. Under Massachusetts law, a Health Care Proxy is a document appointing a health care agent to make decisions for you in the event that a doctor determines you lack the ability to understand and appreciate the nature and consequences of health care decisions. A HIPAA Release form allows the family members and loved ones named in the document to access your protected health information in the event that you are hospitalized. Finally, the Advanced Directives or Living Will allows you to state your wishes and preferences for your end-of-life care. However, in Massachusetts, Living Wills are not officially recognized and are therefore not binding. For that reason, we often incorporate our clients’ end-of-life wishes in their Health Care Proxy. Most often, those wishes include the desire to not have their life artificially prolonged in the event that a doctor determines that they have no chance to recover. At a minimum, your estate plan should include a Health Care Proxy and a HIPAA Release. If you have a Health Care Proxy, you should make sure that it is up to date, and that you still want the people you named to be your health care agent, and that they are still available to do so. If it has been several years since you executed a Health Care Proxy, you may want to consider executing a new one.

Of the documents listed above, the Health Care Proxy is the most important one to have. In the event that you are medically incapacitated, a Health Care Proxy names a person you know and trust to automatically have the authority to make medical decisions for you, in accordance with your wishes that are stated in the document. The person you name in the document becomes your agent automatically in the event of your incapacity – they do not have to go to court and be appointed by a judge. If you do not have an executed Health Care Proxy, one of your loved ones will have to petition the court to become your appointed guardian. The process to have a guardian appointed is needlessly lengthy and expensive – and it can be avoided by executing a simple document. Having a Health Care Proxy is a positive step towards ensuring your health and safety in the event of a catastrophe, but more importantly, it makes things much easier for your loved ones.

The Impact of the Pandemic on your Current Health Care Documents

One of the more concerning threats of the coronavirus is that people sometimes end up being intubated and placed on ventilators. I have spoken with clients who have expressed concern about the impact of this threat on their health care documents, and many have wondered if there should be specific language in their documents to address their concerns.  Additionally, some people are worried that if they have language that they do not want to have their life artificially prolonged, that a doctor will pull them off a ventilator, or will deny them a ventilator. In my opinion, the issue is not so much the drafting of the language, as much as what the clients wishes are.

As stated above, most people state their desire to not have their life artificially prolonged in the event that a doctor determines that they have no chance to recover. Technically, this language shouldn’t have any special impact or be interpreted any differently in the case of coronavirus. In other words, if you have this language in your health care documents, doctors should not take you off a ventilator if you have coronavirus unless they believe you have no hope of recovering. A person with coronavirus will likely have the opportunity to state their wishes without the doctor having to defer to the health care agent that the principal appointed in their Health Care Proxy. Now, if you have specific wishes that you want to explicitly state in your health care documents regarding the coronavirus, you can absolutely do so. However, the most important estate planning you can do during the pandemic is have an up to date Health Care Proxy and a HIPAA Release, along with an updated Will, to make life easier for your loved ones in the event that tragedy strikes.

If you have any questions or concerns about executing health care documents or modifying your current ones, please contact our office. Telephone: (781) 848-0040

Paul Bella, Esquire

This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.