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When it comes to estate planning, many people are surprised to learn that a spouse can’t be entirely disinherited under Massachusetts law. Whether you’re the surviving spouse concerned about your rights or someone looking to limit your spouse’s inheritance, it’s important to understand the concept of the elective share. This legal provision allows a spouse to claim a portion of the estate, even if they weren’t included in the will. In this blog, we’ll explain how the elective share works and what it could mean for you.

What Is the Elective Share?

The elective share is a legal right in Massachusetts that allows a surviving spouse to claim a portion of their deceased spouse’s estate, regardless of what the will states. This law ensures that a spouse cannot be completely disinherited, protecting their financial well-being. If a spouse is left out of the will or receives less than what the law deems fair, they can choose to claim the elective share instead of accepting the terms of the will.

Typically, the elective share amounts to one-third of the estate, but this can vary depending on factors like the presence of children or other heirs. The law is designed to balance the wishes of the deceased with the financial security of the surviving spouse. It’s important for both spouses—whether drafting a will or considering their rights after a loss—to understand this provision and how it can affect the distribution of assets.

How Much is the Elective Share in Massachusetts?

In Massachusetts, the amount a surviving spouse can claim through the elective share is determined by several factors, including whether the couple has children and whether the deceased spouse has other relatives. Here’s how the elective share is calculated:

  • Spousal Share with Children or Grandchildren: The surviving spouse is entitled to the first $25,000 in assets and a life interest or life estate in one-third of the remaining assets.
  • Spousal Share without Children or Grandchildren (but with Other Relatives): The surviving spouse receives the first $25,000 in assets and a life estate in one-half of the remaining assets.
  • Spousal Share with no Children or Relatives): The surviving spouse is entitled to the first $25,000 in assets and one-half of the remaining assets outright.

The Right to Partition: Splitting Property

The right to partition allows a surviving spouse in Massachusetts to request the division or sale of property they co-owned with the deceased spouse. This is especially important when real estate is involved, such as the family home. If the surviving spouse claims their elective share and the estate includes jointly owned property, they can file for partition. This means the property can either be physically divided, if possible, or sold, with the proceeds distributed according to the elective share.

For example, if the surviving spouse is entitled to a portion of the estate but the bulk of the assets are tied up in real estate, partition ensures they receive their fair share, even if that requires selling the property. This legal option prevents the surviving spouse from being left out of valuable assets and ensures equitable distribution. Partition can be a vital tool when other heirs are involved or property can’t easily be divided.

Steps for Claiming or Avoiding the Elective Share

Claiming the elective share in Massachusetts involves a few important steps. First, the surviving spouse must file a petition with the probate court. This must be done within six months of the will being probated, or the right to claim the elective share may be lost. Once the petition is filed, the court will evaluate the estate’s value and determine the spouse’s rightful portion. It’s critical to follow the deadlines and ensure all paperwork is correctly filed to avoid any issues in the process.

For those looking to reduce or avoid the elective share, there are strategies that can be used. Prenuptial and postnuptial agreements can outline specific terms regarding inheritance and may limit a spouse’s claim. In addition, transferring assets into irrevocable trusts or gifting assets during your lifetime can potentially minimize the value of the estate subject to the elective share. Legal advice is important for both spouses to protect their interests.

What Happens if the Elective Share Is Not Claimed?

If a surviving spouse does not claim the elective share within the required six-month timeframe, they forfeit their right to a portion of the estate. In this case, the assets will be distributed according to the terms of the will, and the spouse may receive less—or even nothing—depending on what the will specifies. Once the deadline passes, there are no further opportunities to claim the elective share, so it’s important to act promptly. If you’re unsure of your rights or next steps, consulting with an attorney can help ensure you don’t miss out on your entitled share.

Understanding Your Rights and Options

At LaFountain & Wollman, P.C., we understand that navigating the elective share process can be complex, whether you’re a surviving spouse looking to claim your rightful portion or someone planning to limit a spouse’s inheritance. Our experienced team can guide you through your legal options, ensuring your rights are protected and your estate planning goals are met. Contact us today to schedule a consultation and learn how we can assist you.

About the Author
Attorney Nicholas J. LaFountain has extensive experience litigating and negotiating civil disputes of many types. He has been successfully representing clients in the courtroom since 2004.