After being married to your spouse for over twenty-five years, things have become a bit rocky in your relationship. You and your spouse have two adult children and have decided, at least for now, to remain married. However, you have decided to meet with an estate planning attorney in order to revise your estate plan to disinherit your spouse and leave everything to your children. Can you do this? Technically, yes. However, in the event that you are survived by your spouse, your spouse may still be entitled to a portion of your estate.
Massachusetts General Laws, Chapter 191, § 15 allows a surviving spouse to file a waiver with the applicable Probate Court within six months from the probate of a decedent’s will, waiving any provision in the will for the spouse or otherwise making a claim (i.e. an election) for an interest in the decedent’s probate estate. Note that for purposes of this spousal election, the estate includes assets held in an inter vivos trust created or amended by the deceased spouse after January 23, 1984, where the deceased spouse had the power during lifetime to direct the disposition of trust assets for his benefit. Sullivan v. Burkin, 390 Mass. 864 (1984).
The statute sets forth the manner in which to determine the assets to which an omitted spouse may be entitled. For example, if a spouse dies leaving issue (i.e. children, grandchildren), the surviving spouse is entitled to one-third of the personal property and one-third of the real property, provided, however, if the value of the share exceeds $25,000, the spouse is entitled to the first $25,000 outright and the balance as an income interest.
If a spouse dies leaving kindred (meaning other relatives) but no issue, the surviving spouse is entitled to $25,000, and assuming the value of the estate exceeds $25,000, a life estate in one-half of the remaining assets.
If a spouse dies with no kindred and no issue, the surviving spouse is entitled to $25,000 and one-half of the remaining assets outright.
It is possible for the spousal elective share to entirely disrupt an estate plan. For example, if a surviving spouse is named the beneficiary of the deceased spouse’s retirement accounts, with the remainder of the assets left to children through a will, the surviving spouse may still waive the provisions of the will for the spousal elective share. These types of potential issues may be minimized through prenuptial and postnuptial agreements, or, alternatively, by naming children as the beneficiaries of assets that will not pass through the will such as retirement accounts and life insurance policies.
Therefore, going to back to our initial hypothetical, although it is possible to omit a surviving spouse from a will, this must be done with careful planning and the assistance of estate planning counsel to ensure that an estate plan is not completely derailed in the event that a spouse decides to make a spousal election.