Can a will really leave a husband or wife with nothing? Many families are surprised to learn that Massachusetts law gives surviving spouses certain rights, even if they are left out of a will. This protection is called the spousal elective share.
At Casey Lundregan Burns, P.C., we have spent more than 90 years helping families across Massachusetts with estate planning and probate matters. In this article, we explain what the spousal elective share is, how it is calculated, and what mistakes to avoid when planning an estate.
Spousal Elective Share in Massachusetts
The spousal elective share is a legal right that keeps one spouse from being left with nothing. If the deceased spouse’s will offers less than the law allows, the survivor may “elect” to claim a portion of the estate instead. In Massachusetts, that portion depends on the relatives who outlive the deceased, and the goal is to provide a baseline of financial security for the surviving husband or wife.
How the Elective Share Works: Calculating the Spousal Portion
The share is not a flat percentage. It shifts based on family makeup, as well as the mix of assets left behind.
With Children or Grandchildren
The surviving spouse receives the first $25,000 outright and a life estate in one-third of the assets that remain.
Without Children or Grandchildren (but with Other Relatives)
Here, the survivor still gets $25,000 up front, followed by a life estate in one-half of the balance.
With No Children or Relatives
The law is kinder when no other heirs exist. The surviving spouse collects $25,000 plus one-half of what is left, and that half is received outright, not just for life.
The initial $25,000 usually comes from cash or personal property. If there are not enough of those assets of that value, the estate can sell or mortgage real estate to make up the difference.
| Family Situation | Outright Payment | Additional Interest |
| Children or grandchildren survive | $25,000 | Life estate in 1/3 of the remainder |
| No children, but other relatives survive | $25,000 | Life estate in 1/2 of the remainder |
| No relatives survive | $25,000 | One-half of the remainder outright |
Probate vs. Non-Probate Assets and the Elective Share
Massachusetts courts first look at probate assets, meaning property that passes under a will and through the Probate and Family Court. Non-probate assets skip that process and pass automatically to named beneficiaries or joint owners.
Common non-probate assets include:
- Life insurance proceeds with a named beneficiary
- Retirement accounts such as IRAs and 401(k)s
- Bank or brokerage accounts held jointly with right of survivorship
- Real estate titled as tenants by the entirety or joint tenants
While the elective share focuses on probate property, recent cases show that certain revocable trusts can be included when a court believes the trust was used to dodge the statutory share. Because of that risk, it is wise to review beneficiary forms and trust structures on a regular basis.
Claiming or Waiving the Elective Share: Procedures and Deadlines
A spouse who wants the elective share must act quickly and follow strict rules.
- File a written waiver of the will and election for the statutory share with the probate court handling the estate.
- Serve notice to the personal representative and any interested parties.
- Complete the filing within six months after the will is admitted to probate; missing the window ends the right forever.
If the survivor decides the will is generous enough, or if a prenuptial agreement waives the share, the election can be skipped. Silence after six months counts as a waiver.
The Right to Partition: Dividing Real Estate
Sometimes, the estate is tied up in land. Massachusetts gives the electing spouse a life estate, which can feel useless if the children control the property. In Cianci v. MacGrath, SJC-12531 (2019), the Supreme Judicial Court confirmed that a spouse with a life estate may petition for partition. This means the court can order the property sold or physically divided, then pay the spouse the value of that life interest. Partition prevents the surviving spouse from being trapped in a co-ownership stalemate.
Premarital Wills and Spousal Rights
A will written before the wedding might leave the new husband or wife out altogether. Massachusetts treats such a document as a “premarital will.” Unless the will states it remains effective despite future marriages, the overlooked spouse may claim what they would have received if the decedent died without any will at all. The only carve-out is property that the will leaves to the decedent’s own children.
Strategies to Limit or Waive the Elective Share
Couples who wish to spell out different inheritance terms have several planning tools.
- Prenuptial or postnuptial agreement: A properly drafted contract can waive or modify the elective share, provided both parties sign voluntarily and disclose assets.
- Irrevocable trusts: Moving assets into an irrevocable trust during life can reduce the value of the probate estate, shrinking the share pool.
- Lifetime gifts: Giving property away during life lowers the estate’s size, though large gifts can have tax consequences.
Each method carries pros and cons, so careful drafting is vital.
The Impact of Intestacy Laws
When someone dies without a will, Massachusetts intestacy rules step in. Under Mass. Gen. Laws c.190B, § 2-102, the surviving spouse’s portion changes based on whether parents or descendants survive. For example, if the decedent leaves children from another relationship, the spouse receives the first $100,000 plus one-half of the remaining estate. These intestacy shares can be quite different from the elective-share formula, so even a simple will can provide clearer direction.
Estate Planning in Second Marriages
Blended families often raise tough questions. A parent may want to care for a new spouse while still protecting children from a first marriage. The elective share can upset delicately balanced plans, especially if most assets sit in the probate estate. Trusts that provide income to the spouse for life, then pass principal to children can strike a fair middle ground, but only if the arrangement offers at least as much as the statutory share.
How Outdated Laws Can Affect Your Estate Plan
Statutes evolve, and court decisions like Cianci show how interpretations can shift. A plan drafted years ago might not match current rules on trusts, beneficiary designations, or the elective share. Regular reviews keep documents aligned with today’s law and family needs.
Facing an Elective Share Challenge? Contact Us Today
For three generations, Casey Lundregan Burns, P.C., has protected the interests of Massachusetts spouses, children, and fiduciaries in probate disputes. Whether you hope to claim the elective share or wish to shape an estate plan that respects family goals, our firm is ready to help. We draw on nine decades of experience to pursue practical solutions and preserve family harmony.
Your peace of mind starts with a conversation. Call us at 978-878-3519, or reach out through our Contact Us page. Together, we can craft a plan that honors your wishes and shields loved ones from unwanted surprises.
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.