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The Elective Share: How a Spouse Can Derail Your Estate Plan

the election share - how a spouse can derail your estate plan: Lane, Lane & Kelly - Lawyers in Braintree, MA 02184

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. However, Massachusetts law actually prohibits a person from completely disinheriting a spouse. 

An Example of the Elective Share In Action

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 to 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 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 (Mass. G. L. c. 191, § 15) is so needlessly complex, that it often results in a disastrous situation for the decedent’s estate.

What If the Decedent Dies Intestate?

Now let's consider the example above, but instead Pat (the decedent) died without a Will (intestate). Massachusetts intestacy laws clean up this picture as to what the surviving spouse is entitled to. The statute that determines the intestacy share of the suviving spouse is Mass. General Laws c.190B Article II § 2-102.

Section 2-102 states as follows:

The intestate share of a decedent's surviving spouse is:

(1) the entire intestate estate if:

(i) no descendant or parent of the decedent survives the decedent; or

(ii) all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;

(2) the first $200,000, plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;

(3) the first $100,000 plus 1/2 of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent;

(4) the first $100,000 plus 1/2 of any balance of the intestate estate, if 1 or more of the decedent's surviving descendants are not descendants of the surviving spouse.

Now, Kelly would fall under subsection (4). Pat, the decedent, leaves behind a surviving spouse and two children that are from another marriage. These two children are descendants of Pat, but they are not descendants of Kelly, the surviving spouse. Let's say Pat died with $600,000 in assets. Kelly would receive $100,000 and $250,000 (1/2 of the remaining $500,000 intestate estate balance) totaling $350,00. The remaining 1/2 would be split between Pat's surviving children ($125,000 each). If Pat's children were minors, their inheritance would be held in trust until they turn 18. 

The Complications That Can Result From A Spouse Exercising Their Elective Share

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. As the example above highlighted, whether the decedent dies with or without a Will can result in a difference of hundreds of thousands of dollars that the surviving spouse may or may not inherit. This is why creating a strong estate plan is essential to ensuring your wishes are realized after you pass. 

For a detailed guide on what you need to know to setup a proper Will or Trust as a part of your overall estate plan, check out our article here: Secure Your Legacy: What You Need to Know About Creating a Will or Trust in Massachusetts.

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 amongst 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.



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.