As June is sometimes referred to as ‘wedding season’, what better time to talk about critical planning for those who dip their toes into the legal status of ‘married’ for the second (or third, or fourth) time.
Marriage is not just about declaring your love in the presence of your family and friends. Marriage is a legal contract which creates certain rights and obligations under the law for those who enter into that contract. While most people understand that divorce results in a couple’s assets being divided between them as a court determines if they cannot agree to terms themselves, not everyone is aware that marriage creates rights in a surviving spouse as well, and unlike divorce, it doesn’t matter whether it was a 2-week long marriage or a 2-decade long marriage.
Death without a Will
When someone dies without a Will in place they are said to have died ‘intestate’ and their probate estate will be distributed under the intestate laws of the state in which they were domiciled at the time of death. If a married person dies intestate, the determination of the share of the probate estate that will pass to the surviving spouse is based on the decedent’s other family members who survive. For example, if husband dies leaving wife and children surviving and all of the couple’s children are children of their marriage, then husband’s entire estate will pass to the surviving spouse. However, if either husband or wife has a child from a prior marriage/relationship, then the amount passing to the surviving spouse is the first $100,000 plus 50% of the remaining probate estate.
Death with a Will
A Will is the estate planning document that controls the distribution of a person’s probate estate. If you do not want the Commonwealth of Massachusetts to dictate the distribution of your estate, then make a Will that sets out your wishes. Under the Massachusetts Uniform Probate Code (enacted in 2012) even a Will made prior to a new marriage remains valid where that Will leaves assets to the decedent’s children.
But Beware the Spousal Elective Share
However, even if a deceased spouse leaves a Will, there is a Massachusetts statute that grants a surviving spouse the right to ‘take against the Will’ of the deceased spouse and claim the so-called spousal share. Similar to the intestate share, the amount of the spousal share depends on who are the other surviving family members of the decedent. For example, if the decedent left descendants, then the surviving spouse would be entitled to $25,000 and a ‘life estate’ in one-third of the remaining estate. While this law is intended to protect a surviving spouse from being disinherited, the effect of this statute can be to wreak havoc on an estate plan in a second marriages and can feel especially unfair in short-term marriages.
What’s the Solution?
As with so many things, the solution lies in advance planning. A prenuptial agreement which is properly entered into before the marriage, is the best way to make sure that both parties’ intentions are carried out. This allows the parties, and not the Commonwealth of Massachusetts, to determine how their assets will be distributed in the event of divorce or death.
If we can be of help to you with these or other estate planning or estate and trust administration matters, please contact our office to schedule an appointment to meet with one of our attorneys.
Attorney Suzanne R. Sayward is a partner with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.
June, 2023
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