Can My Spouse Cut Me Out of Their Will?

Imagine learning from your lawyer that your spouse left you nothing. At Casey Lundregan Burns, P.C., clients ask us weekly whether this can happen in Massachusetts.

Spousal Rights: An Overview of Inheritance Laws in Massachusetts

Massachusetts protects spouses by giving them a guaranteed minimum portion of the estate, sometimes called the forced share or statutory share. This safeguard applies even when a will tries to leave the survivor nothing. This rule exists to keep a spouse from becoming destitute after years of partnership.

The key protection is an “elective share.” If the will omits you or provides only a token amount, you may choose to claim this statutory fraction instead of what the will says. Only a written prenuptial or postnuptial agreement, signed with full financial disclosure and fairness, can waive this right, and even then, courts sometimes step in if an agreement looks lopsided.

Remember that probate covers only assets titled solely in the decedent’s name. Joint accounts, retirement plans, and life insurance can bypass probate, although some of those non-probate assets are still considered when courts calculate a surviving spouse’s share.

The Elective Share: What It Is and How It Works

The elective share gives a surviving spouse the option to receive a legal fraction of the “augmented estate” rather than whatever the will provides. In Massachusetts, that fraction is usually:

  • One-third of the estate if the decedent left children or grandchildren
  • One-half of the estate if there are no descendants

To secure the elective share, you must file a written claim within six months after the personal representative is appointed and within two years of the death. Missing either deadline can forfeit the right, so quick action matters.

Although the elective share focuses on probate assets, courts may include certain trusts, payable-on-death accounts, and other transfers if excluding them would defeat the statute’s purpose. A handful of states even adjust the share based on marriage length, but Massachusetts keeps the fraction stable regardless of years together.

The Elective Share Claim Process

  1. Ask the probate court to appoint a personal representative if none has been named.
  2. File a sworn “Election Against the Will” with the same court before the six-month mark.
  3. Serve notice of the filing on all heirs and beneficiaries.
  4. Allow the court and representative to place the estate assets into a separate account until the share is calculated.

Because every estate is different, discuss deadlines and valuation methods with a seasoned probate lawyer as soon as possible.

Prenuptial and Postnuptial Agreements: Waiving Spousal Rights

Couples sometimes sign agreements before or after the wedding to spell out future inheritance. These agreements often appear in second marriages where each partner plans to leave assets to children from an earlier relationship. If properly drafted, a spouse may waive the elective share in writing.

Even so, courts can refuse to enforce a waiver if one spouse hid property, if the signing spouse lacked independent counsel, or if enforcing the contract would leave that spouse on public assistance. Many postnuptial agreements arise when couples separate but remain married long enough that a sudden death could shift the estate. Those contracts must still meet strict fairness tests.

In short, a waiver is possible, but it must be transparent, voluntary, and equitable. Anything less invites litigation.

Separate vs. Marital Property: What is Subject to Elective Share?

Understanding what counts toward the elective share helps you plan effectively.

  • Separate property: Gifts, inheritances, or assets owned before the marriage. In Massachusetts, the elective share ordinarily applies to these assets once they enter the probate estate.
  • Marital property: Assets earned or acquired during marriage, regardless of whose name appears on the title. A surviving spouse already owns part of this outright under state law.

If separate funds are mixed with joint funds, they may transform into marital property. For example, placing an inherited cash gift into a joint checking account can remove its “separate” status, making it subject to the elective share and even division in a future divorce.

Assets That May Not Be Subject to the Elective Share

While the elective share reaches far, some assets follow their own rules:

Asset Type Default Rule in Massachusetts Notable Exceptions
Life insurance Pays to the named beneficiary. Community-property states give the spouse half of premiums paid with marital funds, but Massachusetts does not follow that model.
401(k) or lump-sum pension Federal law grants the spouse at least 50 percent unless the spouse signs a written waiver. A waiver signed before age 35 may be ineffective under federal regulations.
Traditional or Roth IRA Controlled by state law, the account can name anyone as a beneficiary. The elective share may reach the account if it passes through probate or if a court includes it in the augmented estate.
Irrevocable Trust Usually, outside the probate estate and elective share. If the trust was created to dodge spousal rights, a court may still consider its value.

 

Because the interaction of state and federal statutes is tricky, an attorney should review beneficiary designations whenever clients update their wills.

Grounds for Contesting Disinheritance

Even without claiming the elective share, a spouse who receives little or nothing can attack the will itself. Main arguments include lack of capacity, undue influence, and fraud.

Lack of Testamentary Capacity

The testator must understand three core facts: they are making a will, the nature of their property, and the natural objects of their bounty. Dementia, psychosis, heavy medication, or certain brain injuries can block capacity. If the decedent was already under guardianship, the guardian may elect the statutory share with court approval.

Undue Influence

Pressure that overcomes free will—often exerted by a caregiver, new romantic partner, or isolated relative—can void a will. Signs include sudden changes, secrecy, and the influencer’s involvement in drafting or witnessing the document.

Fraud

If someone tricked the testator into signing a will or inserted false pages, the probate court can set aside the entire instrument. Fraud claims must be proved with evidence, so time is of the essence in gathering records and witness statements.

Protecting Your Rights and Interests

Spousal inheritance law may look straightforward on paper, yet small facts can alter the outcome. Whether you need to defend a waiver, file an elective-share claim, or contest a suspect will, qualified guidance is vital. Divorce generally cancels the right of election, but mere separation or abandonment does not. Even a solid prenuptial agreement can crumble if it lacks full disclosure.

For those drafting new estate plans, legal counsel helps align beneficiary designations, trust terms, and property titles so your wishes stand up in court. Careful planning today can spare loved ones expensive litigation later.

Contact Casey Lundregan Burns, P.C., for Guidance on Estate Planning and Spousal Rights

Worrying about being disinherited keeps many people awake at night, but you do not have to face that worry alone. Casey Lundregan Burns, P.C., has guided Massachusetts families through estate planning and probate disputes for three generations, and we stand ready to help you, too.

Call us at 978-878-3519 or visit our Contact Page to schedule a consultation. Let us work together to protect your rights and secure peace of mind for the years ahead.

The information in this post is not intended as legal advice or as a substitute for the particularized advice of counsel. For more information, please consult an attorney.