Can You Legally Disinherit a Spouse in Your Massachusetts Will? Spousal Elective Share Explained
In Massachusetts, you cannot completely disinherit a surviving spouse through your Will. Under the spousal elective share law, your widow or widower has the absolute right to claim a statutory percentage of your estate, regardless of what your Will dictates.
Estate planning allows you to dictate who receives your hard-earned assets after you pass away. However, when it comes to marriage, state law places strict limits on your testamentary freedom. If you attempt to leave your husband or wife completely out of your Last Will and Testament, the law steps in to protect them from financial ruin. Navigating these complex marital property laws requires strategic planning, and you can locate a skilled estate attorney in our United States lawyer directory to ensure your wishes are legally sound.
Understanding the Massachusetts Spousal Elective Share
Public policy dictates that a person should not be allowed to leave their legal spouse destitute upon death. To enforce this, the legislature enacted Mass. Gen. Laws ch. 191, § 15. This statute provides a surviving spouse with the "right to waive the will." If a spouse feels they were unfairly cut out or left an insufficient amount, they can legally reject the terms of the Will and instead demand their "elective share" of the deceased spouse's estate.
How Elective Share Compares to Common Law Rights
In community property states, spouses automatically own 50% of everything acquired during the marriage. Massachusetts, however, is an equitable distribution and common law property state. Because spouses do not automatically own half of the deceased's solely-titled assets, the elective share acts as the primary safety net.
The Statutory Calculation
Calculating the exact value of the elective share is famously complex in this state. Generally, if the deceased spouse leaves behind children (issue), the surviving spouse can claim one-third of the personal and real property. If the deceased leaves behind kindred (like siblings or parents) but no children, the spouse can claim up to $25,000 outright and a life estate in one-half of the remaining property. The exact calculation requires a thorough inventory of the estate.
Filing the Claim
The surviving spouse does not receive this share automatically; they must actively claim it. Under Mass. Gen. Laws ch. 191, § 15, the spouse must file a written waiver of the will and claim of elective share in the registry of probate within six months of the probate of the Will. This is typically filed at the local court handling the estate, such as the Worcester Probate and Family Court, Worcester. The landmark case of Bongaards v. Millen, 440 Mass. 10 (MA Supreme Judicial Court 2003) highlights how courts historically viewed assets placed in certain trusts when calculating what is actually available for the elective share.
Exceptions and Workarounds
While the law strongly protects surviving spouses, there are specific legal mechanisms you can use if you genuinely wish to leave your assets to someone else, such as children from a previous marriage.
Overriding the Elective Share with a Prenuptial Agreement
The most effective way to legally disinherit a spouse is with their written consent. Under Mass. Gen. Laws ch. 209, § 25, spouses can enter into a valid prenuptial or postnuptial agreement where they voluntarily waive their right to the statutory elective share. For this waiver to hold up in court, both parties must have had full financial disclosure and independent legal representation when signing the contract. If these conditions are met, your Will can legally leave everything to your children or charity, and your spouse cannot challenge it.
Physical Separation vs. Legal Divorce
Many couples separate and live apart for years without ever finalizing a formal divorce. This is a massive estate planning trap. If you are physically separated, living with a new partner, and file your probate matters at the Brockton Probate and Family Court, Brockton, your estranged legal spouse still retains their full elective share rights. Until a judge signs the final Judgment of Divorce Absolute, you are legally married, and the estranged spouse can claim their one-third share of your estate if you die unexpectedly.
Frequently Asked Questions (FAQ)
Can I disinherit my children in Massachusetts?
Yes. Unlike a spouse, adult children do not have a statutory right to an elective share. You can completely disinherit a child, but it is highly recommended to explicitly state your intention in the Will to avoid later challenges.
How long does a widow have to claim the elective share?
The surviving spouse must formally file their written waiver of the will and claim for elective share within six months from the date the Will is admitted to probate.
Can I put my money in a trust to avoid the elective share?
It is very difficult. State courts have increasingly ruled that assets placed in a revocable living trust just prior to death can still be pulled back into the estate calculation for the purpose of the spousal share.
Does the elective share apply to life insurance payouts?
Generally, no. Life insurance policies with named beneficiaries bypass probate and are typically not included in the "probate estate" calculation used for the elective share.
What if my spouse agrees verbally to be disinherited?
A verbal agreement is legally worthless in probate court. Any waiver of spousal inheritance rights must be explicitly documented in a valid, written prenuptial or postnuptial agreement.
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