Gone are the days when a nuclear family was the norm in America. Blended families comprised of parents with children from previous relationships are becoming more common. According to some estimates, at least forty percent of American families include a stepchild, half-sibling, stepparent, or other step-relative.
If you or your spouse has children from a previous marriage or relationship, take note. Without a comprehensive estate plan, if one of you dies, Massachusetts statutes dictate how your assets will be divided—and the outcome may not be what either of you would have wanted. Here’s how it works.
Without a Will, Massachusetts Law Determines Who Gets What
When an individual dies (decedent) without a will (intestate), Massachusetts law determines who are the heirs and how much each inherits from the decedent’s estate. The percentage depends on a variety of factors: whether there is a surviving spouse, whether there are any living children within or outside of the marriage, and whether the decedent’s parents are still alive.
Under MGL 2-102, the surviving spouse inherits the entire estate only if there are no living parents or children of the decedent. The surviving spouse’s share decreases by a formula, depending on who else directly related to the decedent survives him or her.
The inheritance formula gets more complicated if either spouse has children from a prior marriage or relationship—all the more so if those children and parents or stepparents are at odds with one another. Here is what can happen in Massachusetts if one spouse has a child from a previous marriage and dies without a will:
Harold and Wanda have been married for 30 years, with no children from their relationship. This is Harold’s second marriage. His daughter from his first marriage, Debbie, hasn’t spoken to him since his divorce and wants nothing to do with Wanda.
In all their years together, Harold and Wanda never got around to creating an estate plan. When Harold dies suddenly of complications from a stroke, Wanda realizes that only her late husband’s name is on the deed to the home they’ve shared throughout their marriage. When his estate is probated, it turns out that Wanda must pay Debbie, with whom she has no relationship, her share of the estate, based on the value of the house and other assets.
The house is worth $400,000, and Harold had cash accounts solely in his name, totaling $50,000, which brings the value of the intestate estate to $450,000. Under Massachusetts intestacy law, Wanda receives the first $100,000, plus half of the remainder (an additional $175,000) for a total of $275,000. Debbie inherits the remaining $175,000.
The only way that Wanda can retain her inheritance and meet that legal requirement (barring some kind of agreement with Debbie, which is unlikely, given that Debbie still blames Wanda and Harold for her parents’ divorce), is for Wanda to either sell her home or take out a mortgage to satisfy Debbie’s share of the estate. Without a will, a court cannot deviate from the intestacy statute, whether or not this unfortunate outcome was Harold’s intention.
A Will Alone Is Not Enough to Ensure Your Intent for Your Heirs in Massachusetts
A will alone, without a comprehensive estate plan, may not be enough to ensure your wishes are followed in Massachusetts. A statute protecting a Spouse’s Elective Share (MGL 191§15) prevents spousal disinheritance and allows a surviving spouse to bypass her or his deceased spouse’s will if he or she finds it unsatisfactory. If the surviving spouse elects to bypass the will under this statute, the decedent’s estate is divided according to a formula dictated by law. Here’s an example from a 2019 case, Ciani v. McGrath, 481 Mass. 174 2019:
A husband had children with his first wife. Together, the married couple executed an estate plan, including a will that gave all his property to his first wife and their children. His first wife died in 2000. The husband then married his second wife in 2013. He died three years later, before he and his second wife had created a new estate plan.
The husband’s will from his first marriage was the only legal document that stated his wishes regarding how his estate would be divided, with all of his property and assets going to his children from his first marriage. But under Massachusetts law, his second wife was allowed to elect to take a Spouse’s Elective Share of the estate. She and the children could not agree on a division of the estate, which resulted in years of litigation between the parties.
That expensive and time-consuming litigation could have been completely avoided if the couple had consulted an estate planning attorney before his death.
Our estate planning attorneys at Mountain Dearborn can help you to rest assured that your wishes are met and that your heirs won’t fight over their shares of your estate after your death. To learn more, please contact us.
