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the election share - how a spouse can derail your estate plan

The Elective Share: 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 as 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.


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